PROCESSES TO COMPEL ATTENDANCE OF AN OFFENDER BEFORE A COURT

An offender must attend court to know charges preferred against him by the complainant.
The two processes by which the attendance of an offender is secured are by summons and
arrest. In most instances, the attendance of an offender in court is ensured by the arrest
of the offender with or without a warrant of arrest.

SUMMONS

A Magistrate may issue a summons to compel the attendance of an accused person before
the court over which he presides, or if the offence alleged appears to be one which he is
not empowered by law to try or inquire into, before a competent court having jurisdiction.
See s. 69 (5) CPC. A summons may be issued on any day including a Sunday or a public
holiday. See s. 69 (8) CPC.

CONTENTS OF A SUMMONS

Every summons issued by a court under s. 69 of the CPC must be in writing and in duplicate.
It must also be signed and sealed by the presiding officer of such court or such other
officer as the High court may from time to time by rule direct. See s. 70 (1) CPC.

Where the law requires that processes issuing from a court shall be signed by the
presiding officer of the court, it is sufficient compliance with the law, if the presiding
officer affixes his signature by means of a rubber stamp. In Goodman v. Eban Ltd (1954)
1 QB 551, the English Court of Appeal held that where a statute requires a person to sign
a document, the provision of the statute is sufficiently complied with if the person affixes
his signature on the document by means of a rubber stamp. Such a signature is deemed
valid in law. Evershed M.R quoted with approval the following observations of Sir William
Bovill C.J in Bennet v. Brumfitti:
“The ordinary mode of affixing a signature to a document is not by hand alone, but
the hand coupled with some instrument such as a pen or pencil. I see no distinction
between using a pen or pencil and using a stamp, where the impression is put upon
the paper by the proper hand of the party signing. In each case, it is the personal
act of the party and to all intents and purposes a signing of the document by him.”

A summons should also be directed to the party summoned and shall require him to appear
at the time and place stated in the summons. It must also contain a concise statement of
the complaint against the accused person. See s. 70 (2) CPC.

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EXECUTIONS OF SUMMONS

A summons is served by a police officer or by an officer of the court issuing it or other

public servant. See s. 71 (1) of the CPC. If the summons is to be served by a police officer,
it is served at any time during the hours of daylight. Where, however, a police
officer has reasonable cause to believe that a person is evading the service the
summons may be served anytime. See section 30 of the Police Act.

If practicable, a summons is served personally on the person summoned by delivery or

tendering to him one of the duplicates of the summons. The person served with the
summons, must sign the back of the duplicate to acknowledge receipt of the service of the
summons. See s. 71 CPC.

Where the person summoned cannot by the exercise of due diligence be found, the
summons may be served by leaving one of the duplicates for him with some adult male
member of his family or with his employer or his servant residing with him. The person
with whom the summons is so left shall, if so required by the serving officer, sign the back
of the duplicate to acknowledge receipt of service of the summons. See s. 72 CPC.

If the mode of service stipulated in ss. 71 and 72 of the CPC cannot by the exercise of
due diligence be effected, the serving officer shall affix one of the duplicates of the
summons to some conspicuous part of the house or home in which the person summoned
ordinarily resides. The summons is then deemed duly served. See s. 73 CPC. Note that a
summons can also be served anywhere in The Gambia. See s. 76 CPC.

Where the person summoned is on Government service, the court issuing the summons
shall send it in duplicate to the head of the office in which such person is employed. The
head of office shall then cause the summons to be served in the manner provided by s.71
of the CPC and shall return it to the court under his signature with the endorsement
required by that section. Such signature shall be evidence of service.

Where a summon is to be served on an incorporated company or other body corporate,

service is effected by serving it on the secretary, local manager or other principal officer
of the corporation or by registered letter addressed to the chief officer of the
corporation in The Gambia at the registered office of such company or body corporate. If
the summons is posted, service is deemed to have been effected when the letter arrives in
the ordinary course of post. See s. 75 of CPC.

When the officer who effected service is not present at the hearing of the case, and
where a summons issued by a court has been served outside the local limits of its

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jurisdiction, an affidavit purporting to be made before a Magistrate that such summons
has been served and a duplicate of the summons as endorsed shall be admissible in
evidence. The statements made in the affidavit are deemed to be correct unless and until
the contrary is proved. Such an affidavit may be attached to the duplicate of the summons
and returned to the court. See s.77 of the CPC.

Where a Magistrate issues a summons in respect of any offence other than a felony, he
may, if he sees reason to do so, and shall when the offence which the accused is charged is
punishable only by fine or only by fine and imprisonment for a term not exceeding three
(3) months or by fine or imprisonment not exceeding three (3) months, dispense with the
personal attendance of the accused, provided that he pleads guilty in writing or appears by
a counsel. See s.78 (1) of the CPC.

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ARREST

The appearance of an offender may be secured before a court of law by means of an

arrest. The offender may be arrested with or without a warrant of arrest. See s.. 69 (1)
(a) of the CPC.

ARREST WITH WARRANT

A warrant of arrest may be issued by a Magistrate or Judge after receiving a complaint

that a person has committed an offence. In practice, a warrant of arrest is usually issued
by a Magistrate in the following circumstances:

(a) When the statute creating the offence or any other law provides that the offender
cannot be arrested without a warrant.

(b) When a serious offence is alleged to have been committed by an offender.

(c) When a summons issued by a Magistrate has been disobeyed.

FORM CONTENT AND DURATUION OF WARRANT OF ARREST

Every warrant of arrest shall be signed by the Magistrate or Judge issuing it. It is also
dated and bears the seal of the court issuing it. S. 81 (1) of the CPC.

A warrant of arrest shall also state shortly the offence with which the person against
whom it is issued is charged. Such a person must be named or described in the warrant.
It should further order the person or persons to whom it is directed (usually a police
officer or police officers) to apprehend the person against whom it is issued and bring him
before the court issuing the warrant or before some other court having jurisdiction in the
case to answer to the charge therein mentioned and to be further dealt with according to
law. See s. 81 (2) of the CPC.

Every arrest warrant shall remain in force until it is executed or cancelled by the court
which issued it. See s. 81 (3) of the CPC. Thus once an arrest warrant is executed, its life
expires. A fresh warrant of arrest has to be issued to effect an arrest. In the Nigerian
case of R v. Akinyanju (1959) WRNLR 253, a warrant of arrest was issued for the arrest
of the accused. It was executed on him and he was duly arrested. Subsequently, he was
discharged. However, he was subsequently re-arrested on the same warrant of arrest.

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The court held that the subsequent execution of the warrant of arrest which had been
earlier executed and had thus outlasted its duration, was irregular.

Like a summons or other processes issued by a Judge or Magistrate, a warrant is not

invalidated by reason of the Judge or magistrate who signed it dying or ceasing to hold
office or have jurisdiction. See s. 88 (2) of the CPC.

ISSUE OF WARRANT OF ARREST

Even where a summons is issued, a warrant of arrest may be issued at any time before or
after the time appointed in the summons for the appearance of the accused. See section
79 of the CPC.

If an accused person, other than a corporation, disobeys a summons and his personal
attendance has not been dispensed with under s.78 of the CPC, the court may issue a
warrant for him to be arrested and brought before it. See s. 80 (1) of the CPC. If the
accused person disobeying the summons is a corporation, the court may cause an officer of
the corporation (any director or member of the Board of management) to be summoned
before it in the manner provided for under the CPC for compelling the attendance of
witnesses. It such an officer fails to attend, a warrant may issue against him. See s. 80
(2) (3) of the CPC.

A warrant can only be issued under s. 80 of the CPC if the court is satisfied by evidence on
oath that the summons directed to that person was duly served. Note that the court can
deal with a case in the absence of the accused person in the manner provided for by s.
163 of the CPC. See s. 80 (5) of the CPC.

EXECUTION OF A WARRANT OF ARREST

A warrant of arrest may be directed to one or more police officers named therein or
generally to all police officers. A police officer can effect an arrest where the warrant
issued by a court is not in his possession but when a person to be arrested asked for it, he
should show and read it over to him. See s. 29 of the Police Act. Note that where the
immediate execution of the arrest is necessary and no police officer is immediately
available, the court issuing such a warrant may direct it to any other person and such
person may execute it. See s. 83 (1) CPC.

When a warrant is directed to more officers or persons than one, it may be executed by
all or any one or more of them. See s. 83 (2) CPC. When directed to any police officer, it
may also be executed by any other police officer whose name is endorsed upon the warrant

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by the police officer to whom it is directed or endorsed. See s. 84 CPC. A warrant of
arrest may also be executed of any place in The Gambia. See s. 86 CPC.

If a police officer or another person is effecting an arrest under the authority of a

warrant, he/she shall notify the substance of the warrant to the person to be arrested
and if so required, shall show him the warrant.

When a warrant of arrest is executed outside the local limits of the jurisdiction of the
court which issued it, the person arrested shall, unless the court which issued the warrant
is within 20 miles of the place of arrest, or is nearer than the Magistrate within the local
limits of whose jurisdiction the arrest was made or unless security is taken under s. 82 of
the CPC, be taken before the Magistrate within the local limits of whose jurisdiction the
arrest was made. Such magistrate shall, if the person arrested appears to be the person
intended by the court which issued the warrant, direct that the arrested person be taken
to the court which issued the warrant. Note that bail can be given unless the law states
otherwise. See s. 87 CPC.

The police officer or the other person executing a warrant of arrest shall (subject to the
provisions of s. 82 of the CPC) without unnecessary delay bring the person arrested
before the court which issued it. See s. 85 CPC. Compare with s. 19 (3) (b) of the
Constitution.

WARRANT OF ARREST ENDORSED WITH BAIL

See s. 82 of the CPC. A warrant of arrest other than one for an offence punishable with
death (murder or treason), may be endorsed with a direction to grant bail to the arrestee,
after the conditions of bail endorsed on the warrant are met by the arrestee. The
endorsement directs that the person named in the warrant on arrest, be released on his
entering into a recognizance in such amount as may be specified, with or without sureties.
The endorsement also requires the arrestee to appear before a particular court and at
such time as the endorsement shall state. The endorsement therefore specifies:
(a) the number of sureties (if any);
(b) the amount in which they and the person named in the warrant are respectively
bound;
(c) the court before the person arrested is to attend and
(d) the time at which he is to attend, including an undertaking to appear at such
subsequent times are may be directed by such court.

Where such an endorsement is made, the officer in charge of any police station to which
on arrest the person named in the warrant is brought shall release him upon his entering
into a recognizance with or without sureties approved by that officer. Where security is
taken, the officer taking it shall have it forwarded to the court that issued the warrant.

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ARREST WITHOUT WARRANT

A person accused of committing an offence may also be arrested without a warrant

of arrest. Generally, police officers, judicial officers and private persons are
empowered before the law to effect an arrest without a warrant. Members of the
Gambia National Guard and the National Intelligence Agency are also given powers
of arrest without a warrant.

THE POLICE

S. 15 of the CPC provides that any police officer may without an order from a
Magistrate and without a warrant, arrest:

(a) Any person whom he suspects upon reasonable grounds of having committed a
cognizable offence, an offence under any of the provisions of Chapter XVII of the
Criminal Code1 or any offence for which under any law provision is made for arrest
without warrant .

(b) A person who commits a breach of the peace in his presence.

(c) Any person who obstructs a police while in the execution of his duty, or who has
escaped or attempts to escape from lawful custody.

(d) Any person in whose possession anything is found which may reasonably be
suspected to be stolen property or who may reasonably be suspected of having
committed an offence with respect to such thing.

1
The relevant sections of Chapter XVII of the CC for the purposes of section 15 (a) of the CPC are
section 160 – Common Nuisance, section 161 – Gaming Houses, section 162 – Betting Houses, section
163 – Lotteries, section 165 – Trafficking in Obscene Publications, section 166 – Idle and
Disorderly Persons, section 167 – Rogues and Vagabonds, section 168 – Criminal Charms, section 169
– Wearing a Uniform Without Authority, section 170 – Negligent Act Likely to Spread Infection of
Disease Dangerous to Life, section 171 – Adulteration of Food or Drink Intended for Sale, section
172 – Sale of Noxious Food or Drink, section 173 – Adulteration of Drugs, section 174 – Sale of
Adulterated Drugs, section 175 – Fouling Water, section 176 – Fouling Air, section 177 – Offensive
Trades.

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(e) Any person whom he suspects upon reasonable grounds of being a deserter
from the Armed Forces.

(f) Any person whom he finds in a highway, yard or other place during the night and
whom he suspects upon reasonable grounds of having committed or being about to
commit a felony.

(g) Any person whom he suspects upon reasonable grounds of having being
concerned in any act committed in any place out of The Gambia, which, if
committed in The Gambia would have been punishable as an offence, and for which
he is, under the Extradition Act or otherwise liable to be apprehended and
detained in The Gambia .

(h) Any person having in his possession without lawful excuse, the burden of
proving which excuse shall be on such person, any implement of house breaking.

(i) Any person for whom he has reasonable cause to believe a warrant of arrest has
been issued by a court of competent jurisdiction in The Gambia.

(j) Any person whom he believes to be bound by any recognisance to appear before
any court or any police officer and whom he believes to be about to leave or is
making preparations to leave The Gambia.

S. 16 of the CPC also empowers any police officer in charge of a police station to
arrest or cause to be arrested without a warrant any person found taking
precautions to conceal his presence within the limits of such station under
circumstances which afford reasons to believe that he is taking such precautions
with a view to committing a cognizable offence.

A station officer can also arrest or cause to be arrested any person found within
the local limits of his station who has no ostensible means of subsistence or who
cannot give satisfactory account of himself. See s. 16 of the CPC.

Where the power of arrest without a warrant is vested solely in an officer in

charge of a police station, such officer may cause the arrest to be effected by any
officer subordinate to him by delivering to the officer required to make the arrest
an order in writing specifying the person to be arrested and the cause for which
the arrest is to be made. See s. 17 of the CPC.

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Where any person who, in the presence of a police officer, has committed or has
been accused of committing a non-cognizable offence, refuses on the demand of
such officer to give his name and residence or gives a name or residence which
such have reason to believe to be false, he may be arrested by such officer in
order that his name or residence be ascertained. See s. 18 (1) of the CPC.

When the time and residence of such person have been ascertained, he shall be
released on his executing a recognizance with or without sureties, to appear
before a Magistrate if so required. However, where such a person is not resident
in The Gambia, the recognizance shall be secured by a surety or sureties resident
in The Gambia. See s. 18 (2) of the CPC.

If the true name and residence of such person is not ascertained within 24 hours
from the time of arrest, or should he fail to execute the recognizance or, if so
required, to furnish sufficient sureties, he shall forthwith be taken before the
nearest Magistrate having jurisdiction. See s. 18 (3) of the CPC.

Section 33 of the Police Act also gives power to the police to board vessels and
arrest, without a warrant, persons suspected of committing a felony. It provides:
A police officer, having just cause to suspect that a felony has been or is
about to be committed in or on board any ship, boat or other vessel lying in
the waters of the River Gambia or within any of the territorial waters of
The Gambia, the ship, boat or other vessel not being actually employed in the
service of the State, may stop, enter into and search, at all times, as well as
by night and by day, every ship, boat, or other vessel, and therein take all
necessary measures for the effectual prevention and detection of any such
felony and take into custody all persons suspected of being concerned
therein, and also take charge of all property suspected to have been stolen,
smuggled or in any way liable to forfeiture or arrest under the Customs Act
or other law, Act or regulation for the time being in force within The Gambia

A police officer is also empowered to stop, search or detain any vessel, boat,
aircraft or vehicle in or in which there is reason to suspect that anything stolen or
unlawfully obtained may be found and also any person who may be reasonably
suspected of having in his or her possession or conveying in any manner anything
stolen or unlawfully obtained, and may seize the thing. See section 36 of the Police
Act.

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Section 35 of the Police Act also empowers the police to arrest idle and disorderly
persons without a warrant of arrest. That section provides:
A person conducting himself or herself in such a manner in any public place,
street or highway, as to cause obstruction or annoyance to the public, may
be moved on by any police officer or arrested and taken before a Magistrate
and on summary conviction is liable to a fine not exceeding fifty dalasis.

Other laws authorise the police to effect an arrest without a warrant of arrest.
Section 73 (1) of the Drug Control Act (Cap. 13:05) provides:

“A Narcotics Control Officer, a police officer, customs officer or any other

person acting in exercise of his or her powers may arrest without a warrant
a person who has committed, or who the police officer, with reasonable
cause, suspects to have committed an offence under the Act.”

Where a controlled drug is found on any premises or in any place searched or in any
ship, vessel, boat, aircraft, or other means of conveyance, as the case may be, the
Narcotics Control Officer, the police officer, customs officer or any officer who
effected the search or stopped the ship, vessel, boat, aircraft, vehicle or other
means of conveyance as the case may be, may arrest without warrant any person in
the premises, place or ship, vessel, boat aircraft, vehicle or other means of
conveyance whom he or she gas reason to believe has committed an offence under
the Drug Control Act. Note that the power to arrest without warrant under the
Drug Control Act shall not be without prejudice to any power of arrest conferred
by any other law. See 73 (2) and (3) of the Drug Control Act.

Section 43 of the Trafficking in Persons Act (Cap 13:04) also provides:

(1) A police officer may arrest a person for trafficking with a warrant issued
in pursuance of this Act or without a warrant.
(2) A police officer may arrest a person for trafficking without a warrant
where –
(a) an act of trafficking is committed in the presence of the officer; (b) the
police officer is obstructed by the person in the execution of police duties;
or
(c) the person has escaped or attempts to escape from lawful custody.

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 (3) A police officer may arrest a person without warrant on reasonable
grounds2 of suspicion where the person –
(a) has committed an offence of trafficking; or
(b) is about to commit an offence of trafficking and there is no way to
prevent the commission of the offence; or
(c) is wilfully obstructing the police officer in the execution of police duties.

Section 57 (1) (e) of the Anti-Terrorism Act (Cap 13:01) also provides:
Where in any case of urgency, communication between a Magistrate to
obtain a warrant would cause delay that may be prejudicial to the
maintenance of public safety or public order, a police officer not below the
rank of Superintendent … may, notwithstanding any other enactment, with
the assistance of such other police officers, as may be necessary…arrest
and detain any person whom he or she reasonable suspects3 of having
committed or being about to commit an offence under this Act.

In the exercise of his powers under the above statutory provisions, a police
officer or Narcotics Control Officer, as the case may be, must show that there
were facts from which it could be reasonably inferred that the suspect committed
an offence. In the absence of such facts, the police officer or Narcotics Control
Officer cannot defend his action by relying on the statutory provision.

What is important is not the belief of the police officer but inference can be
deduced from the facts of the case. Thus the test to be adopted in determining
whether the police officer acted within his power is objective. In other wards
from the facts of the case, could it be reasonably inferred that the commission of
an offence was disclosed. In the Nigerian case of CHUKWUKA v.
COMMISSIONER OF POLICE (1964) NNLR 21, it was observed that.

“The test as to what is reasonable belief that a suspect has committed an

offence is objective. It is not what the policeman himself considered
reasonable but whether the facts within the knowledge of the policeman at
the time of arrest disclosed circumstances from which it could be
reasonably inferred that the appellant had committed an offence.”

In the Nigerian case of JACKSON v. OMOROKUNA (1981) 1 NCR 283, the

plaintiff and somebody else were driving a motor cycle in a high crime area at
night. The defendant, a police officer, demanded for the motor cycle particulars

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and the ignition key. When these could not be produced, the police officer
arrested them and took them to the police station. The police officers at the
police station detained them but they were subsequently released. The plaintiff
brought an action against the defendant for unlawful arrest and false
imprisonment. On the plaintiff’s action based on unlawful arrest, the High Court
held that the defendant had reasonable grounds in suspecting that the plaintiff
and co. stole the motor cycle since they could not produce the particulars of the
motor cycle and did not explain the whereabouts of the ignition key. It was held
that the arrest was lawful. Iguh J observed at pages 296-297:

“The power possessed by police constables to arrest without warrant,

whether at common law for suspicion of felony or under statutes for
suspicion of various misdemeanours is subject to the requirement that the
constable shall before arresting satisfy himself that there exist in fact
reasonable grounds for suspicion of guilt. The test to be applied, with the
onus of proof on the defendant seeking to justify his conduct, must be that
of a reasonable person acting without passion or prejudice. The matter must
be looked at objectively and in the light of the facts known to the defendant
at the time, not on facts that may subsequently come to light.”
The action failed.

It must appear to the police officer that the suspect committed an offence. If
after the arrest, investigations reveal that the suspect did not actually commit the
offence for which he was arrested, and he was subsequently released, the arrest is
not rendered unlawful. What is important is whether at the time of arrest, the
facts disclosed an apparent commission of an offence.

In Whiltshire V Barrett (1965) 2 All ER 271, the respondent was arrested

without a warrant by the appellant, a police officer. The respondent was arrested
for driving while under the influence of alcohol, the arrest being effected by
force, because the respondent did not submit himself voluntarily to the police. In
consequence he sustained some bodily injuries. After the respondent was examined
by a doctor, it was revealed that he was not under the influence of alcohol at the
time he was arrested and he was released. The respondent brought an action
against the police officer claiming damages for assault and unlawful arrest.
Damages were awarded to the respondent in the lower court.

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On appeal, the English Court of Appeal in a unanimous decision allowed the appeal.
It was held that the trial judge misdirected the jury in ruling that if the
respondent did not actually commit the offence, the arrest was unlawful. It held
that if it appeared to the policeman that the respondent was driving under the
influence of alcohol, even though subsequent investigation revealed that at the he
was arrested this was not actually the case, the arrest remains lawful. Lord
Denning at pages 274-275 observed:

“The police have to act at once, on the facts as they appear on the spot and
they should be justified by the facts as they appear to them at the time and
not any ex-post facto analysis of the situation ... In all the many cases,
where a statute gives power to arrest when a man is ‘committing’ or ‘found
committing’, that is apparently committing an offence.”

A police officer, after arresting a suspect, does not have to take the suspect
directly to the police station. He can do what is reasonable to investigate the
offence alleged against the suspect. He can take the suspect to his house to
search in order to obtain necessary evidence. He can take him to any other police
to verify any explanation made by the suspect. For example, if the suspect claims
that he was at a particular place at the time the offence for which he was
arrested was committed, the police officer can take the suspect to the place to
inquire whether he was in fact there before proceeding to the police station.
However, the actions of the police officer must be reasonable. Otherwise he may
be liable for false imprisonment.

In Dallison V. Caffery (1964) 2 All ER 610, the respondent, a police officer was
held not liable for damages for false imprisonment for taking the appellant first to
his house to search for stolen money and then to friend’s house to verify an alibi
before taking him to the police station. It was held that the police officer acted
reasonably in conducting an investigation into the alleged offence before taking
the suspect to the police station.

THE NATIONAL INTELLIGENCE AGENCY (NIA)

The NIA is established under the National Intelligence Agency Decree, Decree
No.45 of 1995 (Cap 17:03). Its functions as stated under s. 3 of the Decree are as
follows:

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 1. To obtain and provide the government with information relating to
actions or intentions of persons who may be a threat to state security
2. To protect the security of the state generally, and in particular, protect
the state against threats of espionage, terrorism and activities relating
to sabotage undertaken by Gambians or foreigners, agents of foreign
powers, organisations or institutions
3. To take adequate precautions to protect the state against activities
which may undermine government or lead to the overthrow of the
government through industrial, violent or other means.
4. To take necessary measures to safeguard the welfare and economic well-
being of the persons living in The Gambia, against threats posed by
internal or external aggressors.

5. To investigate and obtain information relating to the prevention or

detection of serious or economic crimes. An economic crime is defined in
s. 2 of Economic Crimes (Specified offences) Act (Cap. 13:07) as including
any act or omission that results in financial loss, damage or injury or
economic loss or injury, to a public body. Public body includes the
government, a statutory corporation, a company, firm registered society
or any other body in which the government owns shares, holds securities
or has pecuniary or other interest. See s. 2 of the Economic Crimes
(Specified offences) Act (Cap. 13:07).

6. To undertake such assignment as may be assigned to it by the National

Intelligence Council set up under s. 6 of the Decree.

Under s. 10 (a) of Decree No.16, the staff of the agency have the power to arrest
and detain for investigation of any person within the territorial boundaries of the
country suspected of having an intention to undertaking or undertaking activities
inimical to the security of the state, or to the welfare or economic well-being of
persons living in the country. The staff of NIA can also arrest or detain any
person for investigations in relation to any serious or economic crime. See s. 10 (d)
of Decree No. 16.

An officer of the NIA may arrest or detain any person without warrant when
obtaining a warrant at the material time would cause or facilitate the commission
of a crime or an act detrimental to state security. See s. 13 (5) of the Decree.

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The Gambia National Guard (GNG)

The change in government in July 1994 resulted to the amalgamation of the Gambia
National Army with the then Tactical Support Group (TSG) formally called the
Gendarmerie. The Gambia Armed Forces Act (Amendment) Decree, 1996, Decree
No. 87 was put in place to regularize all these changes of names, nomenclature and
chain of command. See Police Powers of the Gambia National Guard in terms of the
Gambia ”Gambia National Army (Gambia National Guard Unit) Police Duties,
Regulation, Legal Notice 1 of 2000” presented by Lt. Colonel Ndure Cham (as he
then was) at a seminar on Access to Justice as a Fundamental Right on 13 th – 14th
May 2005.

The Gambia National Army (Gambia National Guard Unit) Police Duties Regulations,
2000, made under s. 147 of The Gambia Armed forces Act (Cap 19) provides in
regulation 3(1) that in addition to their paramilitary responsibilities within the
Gambia National Army, the Gambia National Guard shall, together with the police,
be employed in the prosecution of law and order, protection of property,
prevention and detection of crime, apprehension of offenders and the enforcement
of all laws and regulations with which the police are charged. Thus apart from their
military duties, the Gambia National Guard unit can exercise duties performed by
the Gambia Police Force.

Under regulation 3 (2), The Gambia National Guard Unit is mandated to regularly
carry out surveillance of the whole country, especially rural areas.

In discharging its duties, the Gambia National Guard may intervene in any place
where public order is threatened and shall be under the command of the
Commander of the GNG. See regulation 3 (3) and (4) of the Legal Notice.

The powers of arrest of the GNG are not specifically spelt out in the said Legal
Notice but regulation 20 (1) of the said notice provides:
“The National Guard shall investigate offences, gather evidence and
prosecute suspects in appropriate courts.”

Regulation 20 (2) further provides

“The National Guard shall carry out its functions under this regulation,
under the supervision of the Attorney General and in accordance with
provisions of the Criminal Procedure Code and other relevant laws.”

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Investigating an offence might entail effecting an arrest which by virtue of
regulation 20 (2) must be in accordance with the CPC and other relevant laws
dealing with arrest. Thus our earlier discussions on the powers of arrest without a
warrant of the police apply to the GNG unit. A person arrested by members of the
GNG may be kept in custody and interrogated or to facilitate investigations. See
regulation 24 of the Legal Notice.

JUDICIAL OFFICERS

When any offence is committed in the presence of a Magistrate within the local
limits of his jurisdiction, he may himself arrest the offender or order any person
to arrest the offender and thereafter, subject to the provisions of the CPC
dealing with bail, commit the offender to custody. See s. 24 of the CPC. Section 25
of the CPC further provides:
“Within the local limits of his jurisdiction, any Magistrate may arrest or
order the arrest in his presence of any person whose arrest upon a warrant
he could have lawfully ordered if the facts known to him at the time of
making or directing the arrest has been stated before him on oath by some
other person.”
In the latter case, the offence is not committed in the presence of the
Magistrate.

Every person is obliged by law to assist a Magistrate or a police officer reasonably

demanding his attention to assist in taking or preventing the escape of any person
whom such Magistrate or police officer is authorised to arrest and in preventing or
suppressing a breach of the peace or in preventing any attempted injury to any
telegraph or public property. See s. 28 of the CPC.

PRIVATE PERSONS

A private person may arrest any person who in his view commits a cognizable
offence, or whom he reasonably suspects of having committed a felony. Under s. 2
of the CPC a cognisable offence means any offence:

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 (1) Which on conviction may be punished by a imprisonment for a term of one
year or more; or
(2) Which on conviction may be punished by a fine exceeding one thousand
dalasis; or
(3) Which is declared by law to be a cognizable offence or to be an offence for
which a person may be arrested without a warrant.

A felony is defined in s.3 of the Criminal Code to mean an offence which is

declared by law to be a felony or if not declared as a misdemeanour, is punishable,
without proof of previous conviction, with death, or with imprisonment with hard
labour for three or more years.

Section 44 of the Trafficking in Persons Act provides:

(1) A private person may arrest a person without warrant –
(a) if the person commits the offence of trafficking in the presence of the
private person; or
(b) where the private person has reasonable suspicion6 that the person has
committed the offence of trafficking.

A Property owner or his servants persons authorized by him can arrest without a
warrant of arrest any person found committing an offence involving injury to his
property. See section 20 of the CPC.

A private person arresting an offender without a warrant shall without any

unnecessary delay take such a person to a police officer, or in the absence of a
police officer, take him to the nearest police station – See s. 21 (1) of the CPC.
Section 44 (2) of the Trafficking in Persons Act also has a similar provision. Thus
under these provisions, a person arrested by a private person must be taken with
all reasonable dispatch to a police station. The test of reasonableness or whether
the delay was “unnecessary“ is determined by the circumstances of each case.

In John Lewis v. Tims (1952) 1 All ER 1203 the appellant was held liable for false
imprisonment of the respondent by a lower court. The respondent and her
daughter had been arrested by a private detective of the appellant company for
stealing from their store. They were taken before the chief store detective and
the managing director of the company, and were detained for some time. The
evidence of the respondent’s daughter was that they were detained for an hour.

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However, there was other evidence that they were detained for less than this.
They were subsequently handed over to the police. In allowing the appeal, the
House of Lords held that where a person in the exercise of his common law right
arrested a person without a warrant, he should take the person arrested to a
Justice of the Peace or police, not necessarily forthwith, but as seen as reasonably
possible. In this case, the taking of the respondent to the appellant’s office to
obtain authority to prosecute from the managing director was not an unreasonable
delay before handing them to the police. The appellants were not therefore not
liable for false imprisonment. Thus failure to take the arrested person to a police
station within a reasonable time renders the person effecting the arrest liable in
damages for false imprisonment.

If a private person hands over an offender to a police officer who believes such a
person can be arrested without a warrant of arrest or order of a magistrate as
provided for in s. 15 of the CPC, the police officer shall thereupon arrest the
offender. See s. 21 (2) of the CPC.

In there is reason to believe that the offender has committed a non-cognizable

offence and he refuses on the demand of the police officer to give his name and
address, or gives a name or address which such a police officer believes to be
false, he shall be dealt with as provided for in Sec. 18 of the CPC, which we have
already discussed above. If there is no sufficient reason to be believe that he has
committed any offence, he shall be released forthwith – see s. 21(3) of the CPC.

MODE OF EFFECTING AN ARREST

An arrest is effected by the police officer or other person making the arrest
actually touching or confining the body of the person to be arrested, unless there
is a submission to custody by word of mouth or action. See s. 8 (1) of the CPC. Thus
unless the person to be arrested submits to the custody of the person effecting
the arrest when he is informed in unequivocal terms that he is under arrest, an
arrest cannot be effected by mere words. The person to be arrested must actually
be touched or his body confined.

In the Nigerian case of Sadiq v. The State 1982 2 NCR 142, the accused was
invited by a police officer to the police station for questioning over the commission
of an alleged offence. The accused refused to accompany the police officer to the

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police station. Other officers were sent to the accused and he was eventually
persuaded to accompany them to the police station. The accused was charged and
convicted, inter alia, with the offence of resisting police arrest. On appeal against
conviction on the charge of resisting police arrest, the appellate court held that
the appellant was never arrested because he was not restrained. It was held that
mere words cannot constitute an arrest under the law unless accompanied by some
form of restraint. Since there was no arrest in law, the court held that the
appellant could not have resisted arrest. His appeal was allowed.

Please note that the person arrested shall not be subjected to more restraint than
is necessary to prevent his escape – See s. 10 of the CPC.

If the person to be arrested forcibly resists the endeavours to arrest him or

attempts to evade the arrest, the person effecting the arrest may use all means
necessary to effect the arrest. See s. 8 (2) of the CPC. The means used to effect
the arrest must however be reasonable. See s. 8(3) CPC. A Person effecting an
arrest may also break out of any house or a place in order to liberate himself or
any other person who’ having lawfully entered for the purpose of making an arrest,
is detained therein. See s. 10 of the CPC.

NOTIFICATION OF ARREST

Except when an arrested person is caught committing an offence or is pursued

immediately after escape from lawful custody, the person effecting an arrest must
inform the person arrested of the cause of the arrest and if he/she is acting
under the authority of a warrant, he or she shall notify the substance thereof to
the person to be arrested and if so required shall show him the warrant. See s. 12
of the CPC.

S. 19 (2) of the 1997 Constitution provides:

“Any person who is arrested or detained shall be informed as soon as is
reasonably practicable and in any case within three hours, in a language that
he/she understands, of the reasons of his or her arrest or detention and of
his or her right to consult a Legal Practitioner.”

See also s. 14 of the CPC which provides:

“Any person who is arrested, whether with or without a warrant, shall be
taken with all reasonable dispatch to a police station or other place for the

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 reception of arrested persons, and shall without delay be informed of the
charge against him. Any such person while in custody shall be given
reasonable facilities for obtaining legal advice, taking steps to furnish bail
and otherwise making arrangements for his defence or release”.

Note further the provisions of s. 19(6) of the Constitution which provides:

“Any person who is unlawfully arrested or detained by any person shall be

entitled to compensation from that person or from any other person or
authority on whose behalf that other person was acting.”

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 IRREGULARITY OF PROCESSES COMPELLING ATTENDANCE

S. 69(2) of the CPC provides:

“The validity of proceedings instituted or purported to be instituted in
pursuance of subsection 1 of this section shall not be affected by any defect
in the charge or complaint or by the fact that a summons or warrant was
issued without any complaint or charge or, in the case of a warrant, without
a complaint on oath.”

S. 88 (1) of the CPC also provides:

“Any irregularity or defect in the substance or form of a summons or

warrant, and any variance between a summons or warrant and the written
complaint, or between a summons or warrant and the evidence adduced at
any inquiry or trial on the part of the prosecution against an accused person
whose attendance has been procured by such summons or warrant shall not
affect the validity of any proceedings at or subsequent to the hearing of
the case, but if any such variance appears to the court to be such that the
accused has been thereby deceived or misled, such court may, at the request
of the accused, adjourn the hearing of the case to some future date, and in
the meantime remand the accused or admit him to bail ...”

S. 130 of the Drug Control Act provides:

“A notice, direction or any other process given, served or published… under

this Act, shall not be invalid by reason of an error or omission in the notice,
direction or other process or in the description of any property or person
mentioned therein if the property or person is identifiable from the
description mentioned.”

Note that under the proviso to section 29 of the District Tribunal Act, an officer
of any District Tribunal or other person bound to execute lawful warrants or
orders issued or made in exercise of the jurisdiction conferred by the Act, shall
not be liable to be sued in any court for the execution of any warrant or order
which he or she would be bound to execute, if the person issuing the warrant or
order had been acting in the exercise of lawful authority.

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Thus, any irregularity in a process issuing from a court, such as a summons or a
warrant of arrest or the service of such processes or any irregularity in effecting
an arrest without a warrant does not invalidate any subsequent trial of the
accused. In the Nigerian case of Okotie v. Police 4 FSC 125, the accused was
arrested without a warrant of arrest and charged with conspiracy to bring false
accusation and stealing. He was convicted of both offences. He appealed against
the conviction on the ground that his trial and conviction were a nullity because the
provisions of the section creating the offence of conspiracy to bring an accusation
which requires an offender to be arrested with a warrant were not complied with.

The court held, inter alia, that the defect in the arrest merely rendered the
arrest unlawful. It did not in any way affect the validity of the trial. The appeal
was dismissed. Abbott Acting C.J.F however cautioned at page 126 thus:

“This section [s.101 CPA of Nigeria] is extremely wide in its terms,

particularly in its last phrase, and it would be contrary to the whole spirit of
administration of the criminal law for the prosecution to rely on it readily.
We do not wish it to be thought it can be invoked to exempt police officers
either from carrying out their duties under the law in the proper way or,
indeed from any civil, criminal or disciplinary responsibility which they might
incur by failing to observe the provisions of the criminal law of this country
relating to the procedure for procuring the attendance of an accused person
before a court.”

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 SEARCHES AND SEIZURES

Where a suspect is arrested by the police, there might be the need for the police
to conduct a search on his person, depending on the offence he is suspected of.
The search is made in order to obtain evidence to be used at the trial of the
offender. Similarly, when a complaint is made before a police officer about the
commission of an offence, it may be necessary on the basis of the complaint for
the premises of the offender to be searched. When a suspect is also conveying
anything unlawful or unlawfully obtained in a movable thing or object, the police
may search the object or thing in order to obtain evidence they may use in the
suspect’s trial.

For offences like stealing, it is necessary to conduct a search in other to retrieve

what is alleged to have been stolen. Similarly for drug offences such as being in
possession of a prohibited drug, for example cannabis, it may be necessary to
conduct a search, so as to retrieve the drug. Search might however not be
necessary in investigating offences like rape.

Section 13 of the 1997 Constitution (dealing with the right to privacy) provides for
searches thus:

(1) no person shall be subject to interference with the privacy of his or her
home, correspondence or communications save as is in accordance with
law and is necessary in a democratic society in the interest of national
security, public safety or the economic well-being of the country, for the
protection of health or morals, for the prevention of disorder or crime or
for the protection of the rights and freedoms of others.
(2) Searches of the person or the home of individuals shall only be justified-
(a) where these are authorized by a competent judicial authority;
(b) in cases where delay in obtaining such judicial authority carries with it
the danger of prejudicing the objects of the search or the public
interest and such procedures as are prescribed by an Act of the National
Assembly to preclude abuse are properly satisfied.

A search may be conducted of a person, of premises and of a thing. It may also

be conducted with or without a warrant, depending on the subject matter of
the search.

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 SEARCH OF PERSONS

S. 36 of the Police Act (Cap 18:01) provides, inter alia, that a police officer may
stop, search or detain any person who may be reasonably suspected of having in
his possession or conveying in any manner anything stolen or unlawfully obtained
and may seize any such thing.

S. 13 (1) of the CPC also provides that whenever a person is arrested by police
officer or a private person, the police officer making the arrest or to whom the
private person hands over the person arrested, may search such person and
place in safe custody all articles other than necessary wearing apparel found on
him/her.

Under s. 13(1) of the NIA Decree the Director General or his designate may
issue a warrant for a person named therein to be search.

S. 153 of the Customs Act (Cap. 86.01) provides that if any customs officer is
informed or has reasonable grounds to suspect that any person who is on board
or has landed from any ship or aircraft or is entering or about to leave the
Gambia or within the customs area, port or airport is carrying or has any un-
customed, prohibited or restricted goods about his person (body), such officer
or any person acting under the directions of the officer may search such person
or any article he has with him. If such a suspect is asked whether he has any
such goods on his person, or in his possession, or in his baggage and he fails to
answer or denies having the same and any of the said goods discovered on his
person or in his possession or baggage, the goods shall be forfeited. No officer
acting in accordance with this section or a person acting under the direction of
an officer under this section shall be liable for prosecution or action at law on
account of such a search. See s. 153 (2) of the Customs Act.

S. 154 of the Customs Act, however, goes on to provide that “before any
person shall be searched, he may require to be taken with all reasonable
dispatch before a Magistrate or the Director General, or other superior officer
who shall, if he sees no reasonable cause for search, discharge such person but
if otherwise, direct that he be searched”. This means that certain officers may
not search without special authority.

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 S. 56 of the Anti-terrorism Act provides that a police officer not below the
rant of Assistant Superintendent or a member of the National Guard may apply
to a Magistrate for the issue of a warrant for the purpose of a terrorist
organisation. Such a warrant issued by a Magistrate may authorize the police
officer or a member of the National Guard to enter the premises and search
any person found within the premises.

Under s. 71 (1) of the Drug Control Act 2003, a police officer, customs officer
or any other person acting in exercising of his/her powers, who has reasonable
grounds to suspect that a person is in possession of a controlled drug in
contravention of the Act or any regulation made thereunder, may search that
person and detain him or her. See also s. 72 (1) of the Act.

Under s. 90 of the Drug Control Act, a police or customs officer may subject
persons suspected of concealing drugs in their body to medical examination in
other to retrieve the drugs concealed in their persons. No medical examination
shall be performed on the body of such a person unless he expressly consents
to the examination. See s. 90 (2) of the Drug control Act. When, however, he
refuses to give consent to the examination of his body, a magistrate may, on
satisfactory representation made to him by a police officer, make an order
directing the body of the person to be examined.

S. 153 (3) of the Customs Act provides that a female shall only be searched by
a female. Section 13 (2) of the CPC provides that all searches shall be made
with strict decency and whenever it is necessary for a woman to searched, the
search shall be made by another woman. It appears there is no statutory
provision prohibiting the search of a man by a woman. In practice however, a
man is usually searched by a man. It also appears that the limitation that a
woman may only be searched by another woman does not extend to anything
appurtenant to the woman, such as the woman’s hand bag, which, since it is not
part of her body, can be searched by a man.

Note that the right to search an arrested person or a suspect does not include
the right to examine his private person. See s. 13 (3) of the CPC.

Note further that the test to be used to determine whether a police officer or
any other officer authorised to conduct a search acted reasonably is
reasonable. The test is the same test used by the courts to decide whether the

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 conduct of the police officer was reasonable in effecting an arrest without a
warrant of arrest. It is an objective test meaning whether a reasonable man
would have conducted the search of the person giving the circumstances.

Search of Premises

Generally a search warrant is issued for premises to be searched. However,

when a police officer has reason to believe that material evidence can be
obtained in connection with an offence for which an arrest has been made or
authorized, any police officer may search the dwelling place or place of business
of the person so arrested or of the person for whom the warrant of arrest has
been issued. After the search, the police officer may then take possession of
anything which might be reasonably needed as evidence in any criminal
proceedings. See s. 93 (1) of the CPC.

Whenever a building or place which is to be searched under a search warrant is

closed, any person residing in or in charge of the premises shall, on demand of
the police officer or other person executing the search warrant, and on
production of the warrant allow free ingress thereto and egress therefrom and
afford all reasonable facilities for a search therein. See s. 96 (1) CPC. Thus a
police officer or other person executing a search warrant must be allowed into
the premises to conduct a search and out of the premises after the search. The
person executing the search warrant should also show it to the occupier of the
premises to be searched before conducting a search. Where ingress into and
egress from such premises is refused to the person executing a search warrant,
such a person may proceed in the manner prescribed by ss. 9 and 10 of the CPC.
See s. 96 (2) of the CPC.

Under s. 9 (1) of the CPC, if any person acting under warrant of arrest or any
police officer having authority to arrest has reason to believe that the person
to be arrested has entered into or is within any place, the person residing in or
in-charge of that place shall, when the officer or other person authorized by
the police officer so requires, allow him free ingress (entrance) into the
premises and afford all reasonable facilities to search therein for the person
sought to be arrested. If ingress to the said place cannot be obtained under s.
9 (1) of the CPC, it shall be lawful in any case for the person acting under a
warrant, and in any case in which a warrant may issue but cannot be obtained

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 without affording the person to be arrested an opportunity to escape, for a
police officer to enter that place and search therein for the person to be
arrested, and, in order to effect an entrance into that place, to break open any
outer or inner door or window of any house or place, whether that of the person
to be arrested or of any other person, or otherwise effect entry into the house
or place, if after notification of his or her authority and purpose, and demand
of admittance duly made, he or she cannot otherwise obtain admittance. See s.
9 (2) of the CPC.

S. 10 of the CPC also authorises a police officer or other person authorised to

make an arrest to break out of any house or place in order to liberate himself
or any other person who, having lawfully entered for the purpose of making an
arrest, is detained therein.

When a senior police officer not below the rank ASP (Assistant
Superintendent) has reason to believe that any person has in his custody or
possession or on any premises owned or occupied by him any stolen property or
property which has been unlawfully obtained, he may authorize any police
officer in his own hand writing to enter into and search any premises where
such person may be and to seize any property discovered therein. See s. 93 (2)
of the CPC.

The power given to a senior police officer under section 93 (2) (a) above can
however only be exercised if the person in respect of whom the authority is to
be issued has been previously convicted of receiving or retaining stolen
property of some other offence involving fraud or dishonesty punishable with
imprisonment. See the proviso of s. 93 (2) (a) CPC.

Please note that it is not necessary for the said senior police officer to specify
in the said authority any particular property s. 93 (2) (b). Note also that any
property seized under the authority of such a senior police officer is dealt with
as if it he had been seized under a search warrant. See s. 93 (3) of the CPC.

When, in the process of executing a search warrant, any person in or about to

leave the premises to be searched is reasonably suspected of concealing about
his/her person any article for which search should be made, such a person may
be searched and if the person is a woman, s. 13 (2) of the CPC applies. See s. 96

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 (3) CPC. Thus a personal search is conducted on such person found in the
premises to be searched.

Section 7 of the Hoarding (Prohibition) Act (Cap 13:06) also provides:

If it appears to a Magistrate on information made before him or her by a

police officer that there is reasonable ground to suspect or credible
information has been received concerning the offences punishable under this
Act, within the jurisdiction of that Magistrate, the Magistrate may issue a
warrant authorising the police officer named in the warrant to enter the
premises and search, seize or if necessary retain all or any of them as long
as they may be required for further investigation into any offence under
this Act.

Under s. 72 (1) of the Drug Control Act “where a Justice of the Peace,
Magistrate or Judge is satisfied by information on oath that there is
reasonable ground for suspecting that...a controlled drug is in the possession of
a person on any premises or in any place in contravention of this Act or any
regulations made under… he or she may issue a warrant authorizing a Narcotics
Control Officer, a police officer, customs officer or any other person acting in
exercise of his or her powers at the time or times within a period to be
specified in the warrant, to enter (if necessary by force) the premises or place
named in the warrant and to search the premises or place and any persons found
therein.” Note also the powers of a Narcotics Control Officer, police officer,
customs officer or anyone authorised by the IGP to enter and inspect premises
under s. 70 of the Drug Control Act.

The Supervisory Authority appointed set up under s. 10 of the Money

Laundering Act (Cap. 13:03) or a law enforcement agency may enter and search
the premises belonging to, or in possession, or under the control of, the
financial institution or any officer or employee of the financial institution if the
grounds listed in s. 13 of the Money Laundering Act are satisfied. See s. 13 of
the Money Laundering Act. Any document or material found in the premises may
be removed.

S. 56 (2) (a) and (b) of the Anti-terrorism Act provides that a police officer
not below the rant of Assistant Superintendent or a member of the National
Guard may apply to a Magistrate for the issue of a warrant for the purpose of a

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 terrorist organisation. Such a warrant issued by a Magistrate may authorize the
police officer or a member of the National Guard to enter and search the
premises of such terrorist organisation.

It is advisable when a search is to be executed on a premises that the person

executing the search warrant is first searched by the occupier of the premises
in order to ensure that the former does not plant whatever is being looked for
in the premises. This, however, is hardly done in this jurisdiction.

SEARCH OF THINGS

For search of things, see s.153 of the Customs Act, s. 13 of the Money
Laundering Act, s. 56 (2) (a) and (b) of the Anti-Terrorism Act and s. 94 of the
CPC which refers to a vessel, boat, receptacle etc. See also s. 71 (1) (b) of the
Drug Control Act.

For the powers of the police to search a thing, see s.33 of the Police Act which
authorises a police officer to board vessels and conduct a search of the vessel
it the police officer has cause to suspect that any felony has been or is about
to be committed in the vessel.

Under s. 36 of the Police Act, a police officer is also empowered to stop, search
and detain any vessel, boat or aircraft or vehicle where such an officer has
reason to believe that stole property or property unlawfully obtained may be
found on board the vessel, boat, aircraft or vehicle.

It appears that the power of the police to stop, search and detain a vehicle on
mounted roadblocks is derived from the power given to the police under s.36 of
the CPC and from the general duty of the police to prevent and detect the
commission of a crime under s. 4 of the Police Act which provides:

The Police shall be employed in The Gambia for the preservation of

law and order, the protection and detection of crime, the
apprehension and detection of crime, the apprehension of offenders
and the due enforcement of all laws and regulations with which they
are charged.

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 GENERAL PROVISIONS ON SEARCH WARRANTS

A search warrant may be issued by a Magistrate or a Justice of Peace (JP) if

satisfied by proof upon oath that there are reasonable grounds to believe that
a building, vessel, carriage, box, receptacle or place is being used for the
commission of an offence. See s. 94 of the CPC. Please note that ss. 81 (1), (3),
83, 84 and 88 of the CPC2 apply to all search warrants issued under s. 94 of the
CPC. See s. 98 CPC. Thus a search warrant is issued under the hand of the said
Magistrate or JP and it authorizes any constable to search the said building,
vessel, carriage, box, receptacle or any place for any such thing, and to seize
and carry it before the Magistrate or JP issuing the warrant or some other
Magistrate or JP for the arrested person to be dealt with according to the law.
A search warrant also remains in force until it is executed or cancelled by the
court which issued it by virtue of ss. 98 and 81 (3) of the CPC.

A search warrant can be issued or executed on any day, including a Sunday and
shall be executed between the hours of sunrise and sunset. A Magistrate may
or JP may, however, in his discretion, by the warrant, authorise the police
officer or any other person to whom it is addressed to execute it at any hour.
See s. 95 of the CPC.

If, acting under the search warrant, a forged bank note, bank note paper, or
instrument or anything unlawfully obtained is brought before a Magistrate or
JP, the Magistrate or JP may direct that the thing be detained for production
in evidence or to be dealt with as the case may require. See s. 97 (2) of the
CPC.

If, acting under a warrant, any counterfeit coin is brought before a Magistrate
or JP, such a thing shall be delivered to the IGP or any person authorized by
him as soon as it has been produced in evidence or as soon as it appears that it
will not be required to be so produced. See s. 97 (3) of the CPC.

If, acting under a warrant, something of a perishable nature is brought before a

Magistrate or JP, the perishable goods shall be disposed of forthwith in such a
manner as the Magistrate a JP may direct. See s. 97 (4) of the CPC.

2
Ss. 81, 83, 84 and 88 deal with forms, contents and duration of warrant of arrest, persons to
whom warrants are directed, execution of warrant directed to police officer and irregularities in
processes respectively.

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 If the thing to be searched for is gunpowder or any other explosive, or
dangerous or noxious substance or thing, the person conducting the search shall
have the same powers and protection given to any person lawfully authorized to
search for any such thing, and the thing itself shall be disposed of in the
manner directed by such law or if there is no such direction, as the IGP directs.
See s. 94 (2) of the CPC.

SEIZURES

In practice, a person conducting a search of premises on the authority of a

warrant usually seizes any incriminating articles found in the premises, although
not directed to seize them under the search warrant. See s. 56 (2) (c) of the
Anti-Terrorism Act, s. 72 (2) of the Drug Control Act, s. 7 (2) of the Hoarding
(Prohibition) Act and s. 13 (2) of the Money Laundering Act.

When anything is seized under a search warrant and brought before a

Magistrate or JP, he may detain or cause it to be detained taking reasonable
care that it is reserved till the completion of the case. If an appeal is made, the
Magistrate a J.P may order it to be detained further for the purpose of or
pending the determination of the appeal. If there is no appeal, the Magistrate
or JP may direct such thing to be restored to the person from whom it was
taken or deal with the property in accordance with section 97 (2), (3), (4) of
the CPC. See s. 97(1) of the CPC.

Also as we noted above, any property seized under the authority of a senior
police officer under s. 93 of the CPC is dealt with as if it he had been seized
under a search warrant.

Under s. 36 of the Police Act, a police officer is empowered to seize anything

discovered in conducting a search on a vessel, aircraft or vehicle.

Note that a person acting on a warrant issued under s. 72 (1) of the Drug
Control Act is not liable to any suit or other proceeding for seizing or detaining
any drug, document or other thing which he or she is entitled to seize or detain
by virtue of that warrant. See s. 72 (4) of the Drug Control Act.

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 LIABILITY FOR PROCURING A SEARCH WARRANT

Where a police officer armed with a search warrant searches premises, the
person who laid the complaint before the police officer (on the basis of which
the police officer lays an information before a Magistrate or JP to obtain a
search warrant) may be liable in damages to the person against whom the
complaint was made.

Such a complainant would therefore be liable for damages if he had no

reasonable cause to believe in the complaint laid by him. For example, A lays a
complaint before B, a police officer, that C stole his mobile phone, or that he
suspected C of stealing his car. If the facts of the case are such that there
are no justifiable reasons for A alleging that C stole his mobile phone or for
suspecting C of the theft of his mobile phone, A would be liable, if, in
consequence of his complaint, B obtained a search warrant and executed it on
the premises of C in order to retrieve the mobile phone.

In Fowler v. Doherty cited in J.I.C Taylor through the cases (Lagos High Court
Publication 1974), at page 23, the defendant laid a complaint before the police
that she suspected the plaintiff and her friends of breaking into her house. As
a result of her complaint, a search warrant was issued and the houses of the
plaintiff and those of some friends were searched, but nothing incriminating
was found. The plaintiff brought an action for damages against the defendant
for maliciously and without reasonable cause procuring a search warrant. The
trial court held that the defendant was not liable in damages because the issue
of a search warrant is a judicial act interposed between the complaint made by
the defendant and the issuance of the search warrant, made by the Magistrate.
Thus the case was dismissed.

On appeal against the decision of the lower court, the High Court held that as
nothing incriminating was found at the appellant’s premises, and as there was no
reasonable cause for the respondent’s suspicion of the appellant burgling her
house, the appellant was entitled to damages.

Where a person lays a complaint before a police officer on the basis of which a
search warrant is obtained, such a person may or may not be liable for damages
for false imprisonment if the person whose premises is searched is arrested
and detained by the police. The complainant’s liability will depend on whether

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 there was an interposition of a judicial or quasi-judicial act between his
complaint and the issuance of the search warrant.

In Kuku v. Olushega 1962 I All NLR 625, D made a report to the police that P
was in possession of her stolen golden chain. As a result, the police obtained a
search warrant, searched P’s premises and found a gold chain. P was arrested
and detained at the police station. P was released after the matter was
investigated and the gold chain returned to her. P brought an action against D
for damages for false imprisonment. The action was dismissed. On appeal, the
appellate court held that the search warrant was issued based on the
information sworn to by the police officer and not the respondent. The
respondent’s complaint, it was held, was therefore interposed by the
information sworn to by the police officer. As the search warrant was issued
based on the police officer’s sworn information, the respondent was not liable in
damages for the issue of the search warrant, arrest and detention of the
appellant because the acts were judicial acts.

Again in Adefunmilayo v. Oduntan (1958) WRNLR 31, D reported to the police

that he suspected P of stealing certain goods from him. Consequently, P was
arrested and detained for a day. P brought an action against D claiming damages
for false imprisonment. P was awarded damages and D appealed. His appealed
was allowed. The court held that it is the duty of the police to investigate a
matter upon receiving a complaint. Such investigation may or may not lead to an
arrest. Where an arrest is made, the person detained by the police cannot hold
the complainant liable for damages for false imprisonment. The court observed
at page 32 that:

This expression of opinion, to my mind, is no more than putting the constable

on a trail upon which he can work instead of leaving him in the wilderness. It
would be the duty of the constable, after receiving such information, to
make investigations himself which may or may not lead to an arrest. It is
therefore not correct to say, that the appellant has put the law in motion
against the respondent merely because the appellant suspected the
respondent and said so to the police.

A complainant, who sets the law in motion against a person alleged to have
committed an offence, may be liable in damages to the alleged offenders for
malicious prosecution. In Balogun v. Amubikahu, 1989 2NWLR (pt.107) 298, the

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appellant and the respondent were parties to a land suit. The appellant lodged a
report at the police station that the respondent hired a woman to kill her. The
woman was alleged to have entered into the appellant’s house and stolen some
clothes and a transistor radio. The woman was arrested by the police, after her
arrest, she made a statement to the police that the respondent sent her on a
mission to kill the appellant. The respondent was subsequently arrested. The
appellant prevented the people from standing as surety for the respondent,
frightening them that the allegation against the respondent being that of murder,
was a serious one. The respondent was detained at the police station until the
following day when he was released on police bail. The respondent and the woman
were subsequently charged. During their joint trial, the woman confessed that she
was tutored by the appellant into saying that the respondent hired her to kill the
appellant. She further stated that the appellant paid her N300 for the assignment.
The woman and the respondent were acquitted and discharged.

The respondent instituted an action against the appellant for malicious prosecution.
The action succeeded and he was awarded damages. On appeal against the decision
of the lower court, the appellant contended that he was not liable in damages for
malicious prosecution because the respondent was not prosecuted by him, but by
the police. The Supreme Court of Nigeria rejected the appellant’s argument and
held that although the arrest and prosecution of the respondent were undertaken
by the police, the real force behind the whole action was the appellant. The
appellant set the law in motion against the respondent by fabricating a criminal
complaint which led to the arrest, detention and prosecution of the respondent.
Dismissing the appeal, Belgore JSC (as he then was) observed thus at page 27:

Once a report or complaint is made to the police and strenuously pursued as

in this case, and through the same mischievous lying, the police not only make
an arrest of the incriminated person, but prefer a charge against him and
take him to court for prosecution, the complainant has set in motion the law
for a person clothed with authority to arrest and charge the incriminated
person. The complainant having made a false statement maliciously, and thus
caused a judicial act like the issue of an arrest warrant to the prejudice of
the plaintiff, will be liable for malicious prosecution in the strict sense.

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EVIDENCE ILLEGALLY OBTAINED

Suppose A, a police officer, enters B’s premises, conducts a search of the premises
without a search warrant and removes certain articles suspected to be stolen from
the premises. Supposed also that K, a male customs officer, conducts a search on
the person of D, a female passenger, and recovers cocaine from her person.

In the face of the above-named facts, can A and K tender as evidence in court the
stolen goods and the cocaine obtained during the search. These recovered items
were clearly illegally obtained in that the stolen goods were recovered without a
search warrant, the cocaine upon the search of a female by a male customs officer.

Even though these are evidence illegally obtained, they are admissible in court.
Except for involuntary confession, evidence illegally obtained is admissible if
relevant to the fact in issue. The law was succinctly stated by the JCPC in Kuruma
v. R (1955) 1 All ER 236 at 239 thus:

“The test to be applied in considering whether evidence is admissible is

whether it is relevant to the matters in issue. If it is, it is admissible, and
the court is not concerned with how the evidence was obtained.”

The above observation from the JCPC was approved by the Nigerian Supreme
Court in the case of Musa Sadau and Anor v. The State (1968) NMLR 208.

In the English case of R v. Senat & Sin (1968) 52 Cr. App. R. 282, where evidence
was obtained by tapping the appellant’s telephone, the English Court of Appeal held
that even though this is evidence illegally obtained, it was nonetheless admissible in
evidence because it was relevant to the fact in issue.

Note, however, that the police officer or any other law enforcement agent who
obtained evidence illegally may be liable to the aggrieved person for damages in a
civil action. In the above illustration, A and K may be liable in damages to B and D in
an action in trespass to property or trespass to the person respectively.

In the English case of Elias v. Pasmore, 1934 2 KB 164, for example, the
respondents served a warrant of arrest on H. In the premises where H was
arrested, certain documents were removed. One set of documents was used as
evidence against the appellants at their trial. The other set of documents was

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unconnected with the criminal case and was returned to the appellants. The
appellants brought an action against the respondents, inter alia, for trespass to
property. The court held that in respect of the set of documents irrelevant to the
criminal trial, the respondents were liable to the appellants in trespass to property.
However, they were held not liable for trespass to the premises. The appellants
were awarded damages.

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