TAX: Tax Appeal Tribunal has Original Jurisdiction to Determine Matters Relating to Personal Income Tax

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By AndersonTax

On 13 November 2018, in the case between Lagos State Board of Internal Revenue (LIRS) vs Ecoserve Limited (Ecoserve), the Lagos State High Court (Court) ruled that the jurisdiction to determine disputes relating to Personal Income Tax (PIT) assessments is vested in the Tax Appeal Tribunal (TAT). In reaching its decision, the Court relied on the provisions of Sections 58 – 60 of the PIT Act and held that the TAT and not the State High Court is vested with the jurisdiction to hear PIT matters at first instance.

 Details

In 2013, LIRS instituted an action against Ecoserve for non-remittance of PIT and Withholding Tax. In response, Ecoserve filed a counterclaim against LIRS seeking, inter alia, an Order of the Court setting aside the Demand Notices issued by LIRS on the basis that the said liabilities were wrongly calculated.

In responding to the counterclaim, counsel to the LIRS argued that Ecoserve had no right to counterclaim because it had not exhausted all the statutory remedies for tax disputes stipulated under Sections 58 – 60 of the PIT Act by objecting to the said assessments and subsequently instituting an action before the TAT.

The Court ruled in favour of LIRS holding that the remedy of a taxpayer on any assessment issued to him is to object to the assessment and have the objection heard by the tax authority and thereafter, the TAT. The Court further held that the State High Court has no original jurisdiction on complaints relating to PIT assessments and subsequently struck out the counterclaim.

 Implication

Based on this Ruling, taxpayers and tax authorities are expected to commence actions relating to PIT assessments at the TAT. This Ruling is in line with prior decisions of superior courts which state that where a statute prescribes a legal line of action for determination of an issue, the aggrieved party must exhaust all the remedies in that law before going to court.

Notwithstanding the foregoing, it is important to note that the State High Court may, in effect, be robbed of its jurisdiction to determine state tax disputes under the constitution if such disputes are first heard at the TAT. This is because appeals from the TAT lie directly to the Federal High Court (FHC) and not the State High Court by virtue of the Fifth Schedule to the Federal Inland Revenue Service (FIRS) (Establishment) Act.

It is, however, instructive to note that the Lagos State High Court had previously upheld its jurisdiction to hear and determine PIT matters without recourse to the TAT, in the case between Chemiron International Limited v LIRS. (Read our Tax Alert on the Chemiron case here). In that case, the Court relied on Section 272 of the 1999 Constitution which grants the High Court of a State an unlimited jurisdiction over civil and criminal proceedings. Furthermore, the Court, while taking note of the dispute resolution process in the PIT Act, held that a court of law should not allow the provisions of an enactment to be read in such a way as to deny citizens direct access to courts.

Based on the foregoing conflicting decisions, it would appear that the issue relating to the jurisdiction of the State High Court to hear and determine disputes relating to PIT matters still subsists given the inconsistencies in the provisions of the PIT Act and FIRS (Establishment) Act vis-à-vis the Constitution. It is, however, hoped that the Court of Appeal would resolve the apparent inconsistencies.

 

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OH, THE ALMIGHTY JUDICIARY IS ON TRIAL AGAIN!

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By Prof Obiaraeri, N.O., Ph.D (Law), B.L., etc. (Professor of Law)

The judiciary is a sacred institution and remains so.

The sanctity of the judiciary is indubitable and unassailable in a thriving and mature democracy.

Unfortunately, Nigeria is a fledgling or struggling democracy and its judiciary is troubled.

Judges who man the judiciary are special breed of homo sapiens taken from among the specially trained minds called lawyers.

By the way, it is not every lawyer that has the qualification, temperament, mien, demeanour, candour and calling for being a judex or properly put, a judge of court of superior record.

Hence, every judge is a lawyer but not every lawyer is a judge and these fine distinctive attributes must not be taken lightly.

Under the ancient doctrine of seperation of powers, the judiciary is the only arm of government vested with interpretative powers of the laws of the state.

Nigeria is a constitutional democracy and the extant 1999 Constitution as amended in its section 6 expressly vests the judicial powers of the federation on the judiciary.

Whatever thing that happens with the judiciary directly affects the polity because the judiciary is an important and indispensable institution in nation building.

The polity is awash with the unsettling news that the Chief Justice of Nigeria (often abbreviated as “CJN”), the head of the Supreme Court, the apex and final court of law and policy, may be dragged to the Code of Conduct Tribunal for breaching the constitutional requirements over declaration of assets.

Naturally, given the looming general elections and associated political over dramatisation of every issue, this has rankled the troubled nation.

Of a truth, this is unheard of and unprecedented as no CJN has been on trial since 1863 when the coinage “Supreme Court” was first adopted by the colonial masters via the enactment of the Supreme Court Ordinance No. II and or since the formal establishment of the Supreme Court of Nigeria in 1963 following the abrogation of the appellate jurisdiction of the judicial committee of the Privy Council which was Nigeria’s apex Court.

Opinions have been rife on the development which has rather developed premature ullage by some dissatisfied lawyers and commentators who “hold unto its droplet to make mountainous and misleading interpretations according to each hold of it they get in bits”.

Lawyers and ordinary citizens are entitled to their opinions on any issue but they should not in guise of enlightenment convulse the thoughts of the ordinary man as they may have had theirs in that light.

Therefore and advisedly, those throwing pedestrain innuendos or rushing into political conclusions or unleashing mob mentality through offering unprocessed legal opinions on the very sensitive subject without getting the full facts of the matters are not doing the judiciary or the polity any good.

By any standard, the Chief Justice of the Federation is not a small official of State. He ranks by national protocol.

The CJN is the head of the judiciary in Nigeria and that is an exalted office with commensurate gargantuan responsibilities and high expectations and it is in that light that the allegations against him must be dispassionately mirrored.

The point must be accentuated very clearly that the requirements for being a judicial officer are usually higher than that required for being a member of any of the other arms or branches of government (being the executive and legislature).

A judge or judicial officer is expected to live admirably and consistently above board like the proverbial Ceaser’s wife.

By a community reading of the Judicial Oath in the Seventh Schedule of the 1999 Constitution as amended and the Code of Conduct for Judicial Officers, a judicial officer must not be tainted or corrupt or compromisable and having no business with politics or partisanship.

Aside intergrity, impeccability and incorruptibility which are the irreducible minimum standards for a judicial officer, at all times and in all circumstances, a judicial officer must never be in breach of the Constitution or laws of the land.

The allegation before the Code of Conduct Bureau (also called “CCB”) is that the CJN, Nigeria’s most senior judicial officer, maintained illegal accounts containing foreign currencies and did not declare them.

By no means is this a trifle or a joke or allegation that can be dismissed with a wave of the hand or sacrificed on the alter of expedience or political jiggery-pokery.

Without prejudice to the right to presumption of innocence, these allegations are direct affronts and breaches of the provisions of the Constitution which judicial officers among other things swore to observe and uphold.

Sadly, preliminary findings disclose that the deposition or statement of the Learned CJN to the CCB did not completely and satisfactorily rebut these weighty allegations.

That is tacky, tricky, most troubling and disturbing.

What do you do in the circumstance given that the law must be allowed to take its course?

Conclusively, suspicion is not a ground for criminal responsibility.

Besides, our law is that even an accused person facing trial is presumed innocent until foundj guilty by a court of competent jurisdiction.

This raises serious dilemmas for all concerned.

Should the suspected erring judicial official (in this case the CJN) be prosecuted for non-declaratipn of assets and maintaing illegal foreign acounts contrary to the Code of Conduct in keeping with the dry letters or the law and in satisfaction of the requirements of equality before the law or should he not be prosecuted based on his exalted office or political or other extrenous considerations?

Our laws do not confer immunity on judicial officers except in the due discharge of their judicial functions.

Petitions against erring judicial officers must first go to the NJC.

Paradoxically and coincidentally, the CJN is the head of NJC and he is the one whose conduct is in issue.

Too many questions are therefore thrown up at this stage- was the NJC petitioned before this matter came into public domain; can the CJN be a judge in his own cause or matter; when then is the best time to prosecute an erring judicial officer?

To arrive at final conclusions, we must hear both or all sides to this unusual issue (the petioners, the CCB, the NJC, and CJN and even the Attorney-General of the Federation). That is the basis of the time- honoured and ancient doctrine of fair hearing or audi alteram partem.

Nigerians quickly need satisfactory explanations to these questions and many more grey areas surrounding this ugly development.

However this matter is resolved, the point has come out that the judiciary, which is the sentinel of democracy, is on trial one more time.

It is a wake up call for all stakeholders to ensure the independence, impartiality and incorruptiblity of the judiciary.

Unfortunately, the NBA (a major stakeholder) is in coma as the NBA President is currently in court struggling hard to save his name, face, fame, silky wig and gown, earnings and liberty from the proverbial long arm of the law over corruption charges.

That is a big moral burden and whatever NBA under its beleaguered President says now may pass as sheer humbug. Too bad!

Beyond attention seeking comments, analysis and posturings whether by lawyers or laymen, this is the time to comprehensively clean up the judiciary and weed out the few bad eggs among them and save the integrity of the majority who have shown tenacious fidelity to their solemn Oath of office.

There is no more room for pretences and holier than thou attitude. The truth must be told and may the heavens not fall, our judiciary is sick!

We so submit…As the Court Pleases.

A new normal is possible!

 

TAX: Stretching the law on taxation of severance benefits via withholding tax on capital gains

downloadBy Yomi Olugbenro

Lagos State Internal Revenue Service (LIRS) has issued a public notice to notify employers of the exercise of its powers to appoint them as its agent in connection with employees’ tax obligation on severance benefits. It specifically request employers to deduct and remit applicable capital gains tax on payments to employees as compensations for loss of employment.

This directive, as with many aspect of taxation, raises a number of issues. The first issue is to determine the nature of a given severance benefit. Is it such that the tax law exempts completely or allows to be taxed under a specific tax regime? I will focus mainly on differentiating between terminal benefit and termination benefits and keep the discussion on the specific issue of compensation for loss of employment.

There is no specific definition for compensation for loss of employment in either PITA or CGTA. By general English usage, terminal benefit refer to final entitlements (often pre-agreed) paid upon expiration of agreed tenure of service. This presupposes that the benefit is probably known and known ahead of time. It may or may not have been quantified at the start of the employment but both the employer and employee are aware that this form part of the total employment package.

Termination benefit, on the other hand, if more likely to refer to compensation for unexpected redundancies triggered by a closedown, downsizing, business reorganization and similar sudden change of fortune or focus by the business. As the name suggests, it is paid as compensation for unplanned loss of means of livelihood. It will appear that termination benefit is more likely to fit better into the definition of compensation for loss of employment.

Tax treatment of severance benefit is one aspect of Nigeria’s tax laws that has been a subject of controversies or, at least, confusion. Two tax laws are relevant in explaining the issues here – Personal Income Tax Act (PITA) and Capital Gains Tax Act (CGTA). PITA, which is the primary income tax law which is administered by way of Pay-As-You-Earn (PAYE) scheme exempts compensation for loss of employment from tax. That is, no personal income taxes (as contemplated by PITA) is applicable on compensation for loss of employment.

CGTA, on the other hand, considers any “capital sum” received as “compensation for loss of employment” to be a chargeable gain which is taxable to capital gains tax at the rate of 10%. However, unlike PITA, CGTA does not contain any provision for application of withholding taxes or “PAYE”. It also does not provide for third party obligation with respect to advance deduction of taxes due under CGTA but expects individuals liable to CGTA to self-account for any tax that may be due.

Whilst LIRS agrees that compensation for loss of employment are free of personal income tax, it holds the view that CGTA is applicable and thereby seek ways to proactively collect capital gains tax by holding employers responsible. Simply put, withholding tax (WHT) rules which applies under PITA is now being “imported” into CGTA. LIRS purportedly rely on its powers to appoint anyone as collection agents by citing the provisions of PITA and linkages in CGTA.

This directive is fraught with multiple issues. First, severance benefits must first be clearly separated into termination benefit and terminal benefit. The tax treatment of these different benefits differ, even by the admission of LIRS. LIRS initially issued a public notice in 2017 wherein it stated that terminal benefits should be taxed as regular employment income under PITA (and administered as part of PAYE) while termination benefits should be taxed as capital gains (under CGTA).

The second issue is the application of withholding tax on capital gains and employers’ obligation in connection with the tax. Let us assume, without conceding, that LIRS’ position on the meaning and applicable tax laws for terminal benefit and termination benefit is correct, there is a major issue with application of WHT on capital gains. Tax is a matter of law. It can only be applied in manner prescribed by the law. Whereas PITA makes specific provision on how PAYE/WHT is applied on income taxable under PITA, there’s no withholding tax rule on gains taxable under CGTA.

Taken that compensation for loss of employment is considered as capital sum liable to tax under CGTA, tax can only be applied in manner prescribed under CGTA. Capital gains tax are paid by taxpayers on self-assessment basis. Power to appoint collection agents for tax purposes is contained in PITA, not CGTA. The rule for adoption of PITA administrative process covered in section 43 of CGTA (relied upon by LIRS) does not clearly relate to WHT practice.

Employers are therefore likely to resist importation of the provision of withholding tax rule contained in PITA to CGTA. No one likes to pay tax, it is a statutorily imposed civic obligation. It will therefore not be out of order for everyone to seek ways of avoiding obligations that are not so clearly mandated by the law.

While I agree with the provision of CGTA that “capital sum” paid “compensation for loss of employments” are chargeable gains, CGTA does not indicate employer’s obligation as withholding tax agents. Individuals earning capital gains are required to account for their taxes in manner prescribed by CGTA.

The dilemma faced by Nigeria tax authorities and for which an escape route is being sort is the enormity of the administrative burden of chasing millions of individual taxpayers. So they look for a convenient way out. But no one wants a burden unless legally imposed. Governments should rather focus on revamping tax laws in Nigeria to close identified lapses and bring the laws to modern realities. Nigeria tax laws are laden with rules that have lost touch with emerging realities and not so much is being done to aggressively change the status quo. The process of law-making is cumbersome and long-lasting. So short-cuts are found. While some creative ways such as executive orders may help, issuing public notices and circulars that seek to change the law will be faced with resistance.

I must express my admiration for LIRS for its innovative ways of tackling evasion and growing its tax revenue. You may not agree with their position, but LIRS doesn’t claim helplessness. Despite administering the same federal law, it has its position on several contentious issues and proactively pushes its view. However, some of the positions constitute a stretch of the law which raises considerable tension in the tax space. This is where caution is needed.

It is important to allow taxpayers enjoy benefits of ambiguous rules. This is the norm in tax practice. Government should rather exercise its power to make and amend laws to curb abuses. Attempts at refurbishing a 1967 law via public notices and expecting same to fit into the modern realities of twenty-first century will only generate legal tussles that will multiply disputed tax cases.

The greatest challenge facing the country is paucity of revenue but this is not being addressed with the required vigor. Both the executive and legislature should be working hard on regulatory intervention to address the revenue challenge. The current low tax penetration challenge cannot be resolved unless the law is fixed. Nigeria need new tax laws that will consolidate existing taxes, introduce modern rules, be wide-covering, efficient and effective.

 

Analysis: The legality or otherwise of keeping a large sum of cash at home

By O. G. Chukkol

Let us first ask ourselves few questions as a necessary prelude to this discourse.
Is there limit to the amount of money, whether local or foreign currency, that one can keep at home or move around with? Must one keep his money in the bank? Is it a criminal offence to keep large sum of cash in a house or move around with same? What if I am found with millions or even billions at home, am I bound to give explanation to anyone? This article seeks to address these questions.

In the case of EFCC V Thomas (2018) LPELR-45547(CA), Thomas sent someone with millions of dollars cash to Abuja from Lagos. At the airport, EFCC seized the money and arrested the person sent with the money. When Thomas claimed his money from the EFCC, he was arrested. Thomas filed an action for the enforcement of his right to own property. High Court gave judgement in his favour and the said judgement was affirmed on appeal. The Court of Appeal while delivering judgement held thus:

“The act of keeping money at home or other places of choice is not a named offence in any law in this country. The Anti Money Laundering Act does not have such provision and the E.F.C.C. Act also has nothing in that direction. Furthermore, there is also no known offence for travelling with money legitimately earned within the country. The requirement of declaring sums beyond a threshold is only when you are travelling outside the country. Travelling from Lagos to Abuja is still within the territorial jurisdiction of the country known as Nigeria.”

Based on the above decision of the Court of Appeal, it means under our corpus juris (body of laws), a Nigerian has the unfettered right to keep any amount he has in his house or move around with it. He can keep it under his pillow, bed, inside his car etc. No one is bound to keep his money in the bank and no one shall be arrested or prosecuted for keeping a large sum of cash at home.

However, let me quickly state that the right to keep ones money at home is to be exercised within certain limits. Because:

•••Making or accepting cash payment exceeding 5million is a criminal offence if it is not done through a financial institution. See section 1 of the Money Laundering Act and the case of ATOYEBI v. FRN (2017) LPELR-43831(SC)

•••spraying money, dancing, marching or writing on or squeezing it is a criminal offence. See section 21 (2)&(3) of CBN Act, 2007.

•••converting or transferring resources or property derived directly or indirectly from drugs related offences or any other crimes or illegal acts with aim of concealing or disguising the illicit origin of the resources or Property is a crime. see section 15 of the Money Laundering Act and UDEOGU v. FRN & ORS (2016) LPELR-40102(SC).

••• Etc

This leads us to the next but vexed point:

WHAT IF THE MONEY FOUND IN POSSESSION OF A PERSON IS SUSPECTED TO BE ILLEGITIMATE OR BEYOND THE PERSON’S EARNING?

Our administration of criminal justice system in Nigeria is adversarial in nature. This is rooted in the operation of section 36(5) of the constitution which is to the effect that a person is presumed innocent until proven guilty. By that provision, the duty is always on the prosecution to prove the guilt of an accused person. Is not for an accused person to prove his innocence.

It should be noted that generally there are two types of burden of proof. Viz:
•••Legal burden of proof and
•••Evidential burden of proof.

Legal burden of proof does not shift at all. It rests squarely on the prosecution throughout a trial whereas evidential burden of proof does shift.

Legal burden of proof refers to the duty on the prosecution to prove the guilt of an accused person beyond reasonable doubt. Evidential burden on the other hand refers to the duty of adducing evidence in support of one’s case. Here once the prosecution establishes a prima facie case that can sustain a charge, the burden of adducing evidences shifts to the accused person to disprove the case of the prosecution.

Some few days ago the case of DAUDU v. F.R.N. (2018) LPELR-43637 (SC) was everywhere in the media with diverse captions but all pointing to a single direction to the effect that in Money Laundering and corruption cases, the Defendant has to establish the legitimacy of a money found in his possession. Of course this is very true. But People stretched the words and intention of the noble justices of the Supreme Court to a bizarre extent. They went as far as suggesting that the Supreme Court meant the state has no duty to prove the guilt of the accused once found in possession of pecuniary resources or property beyond his means.

With the greatest respect, this is a height of misconception informed by the failure to read the judgement of the court as a whole. Besides; the court merely gave life to an existing law, to wit, section 20(2) of the Money Laundering Act. We have similar provisions in other legislations like section 19(5) of the EFCC Act, section 319A of the Penal Code, sections 132 and 136 of the Evidence Act, 2011 etc. These provisions are strictly limited only to evidential burden as explained earlier.

The Supreme in Daudu V FRN (supra) never intended to turn law to its head nor intended to repeal or nullify the presumption of innocence entrenched in section 36(5) of the constitution. Furthermore, it was not the intention of the Court to introduce an inquisitorial system of administration of justice which requires a person to prove his innocence. Besides, it does not have power to do so. What the Court did was to restate the law as it relates to evidential burden of proof in money laundering cases. Evidential burden is based on public policy and the need for an accused person to at least say something in respect of the charge against him. In fact by section 137 of the Evidence Act, 2011, such explanation is to be on balance of probability. That is to say, once his explanation is the most probable, the case of the prosecution shall fail.

The position as it is today is that, when a person is found with money far beyond his legitimate income, the prosecution must still have to charge him to court, open its case, call witnesses, tender documents and establish a prima facie case before the accused person enters his defence; else the accused can be discharged and or even be acquitted if he files a no case submission. A person cannot be guilty simply because he is in possession of pecuniary resources or property beyond his legitimate income. Presumption of innocence is constitutional and same has not been amended by the National assembly

Sexual Harassment in Nigerian Universities: Accused Lecturer sentenced

No-means-no

A former lecturer in the Obafemi Awolowo University, Ile Ife, Professor Richard Iyiola
Akindele, who was dragged to court for demanding sex to pass one of his students, Ms.
Monica Osagie, on Monday, 17th December 2018 was sentenced to two years in prison.

Justice Maureen Onyetenu, who had to stand down the case two times, before finally giving her judgement, said regardless of the plea bargain arrived at by the parties, Akindele should be used as an example to deter higher institutions’ lecturers in the habit of molesting female students because of sex from engaging in such acts.

The trial Judge sentenced Akindele to 24 months jail-term for asking Monica for a sexual benefit and handed him another 24 months jail-term for soliciting from the victim sexual benefit to pass her.

The visibly displeased Justice Onyetenu also sentenced Akindele to 12 months jail-term for deleting parts of the Whatsapp conversation between him and Ms. Osagie to conceal evidence against him and sentenced him to another 12 months jail-term for falsification of age. The six years jail terms are to run concurrently.

The judge who insisted that plea bargain could apply when public interest was involved,
stressed that public interest was against Akindele, saying many female students have been turned to sex slaves by higher institutions’ lecturers.

“The menace is getting to secondary and primary schools. I am a pastor and a counselor. I know the mental torture many of our female students have been subjected to by the likes of the respondent.

“The adverse effect of such action is huge. Many of his likes have been awarding marks to those students that are ready to warm their beds, thereby releasing half-baked graduates into the society,” Justice Onyetenu said.

Earlier, Akindele informed the court of his decision to change his plea from ‘not guilty’ to
‘guilty’ in an apparent plea bargain arrangement, which his legal team reached with the
prosecutor.

Source: Punch

When Law Officer’s Execution Of Search Is Illegal

By Stephen Ubimago

In this piece, STEPHEN UBIMAGO, writes on the meaning and nature of police (law officer) search and its implication on the right to personal liberty and privacy of the accused person…

Search, in criminal law, constitutes the examination of a person’s body, apartment, premises, office areas, vehicle, aircraft and other such places by a police officer or other categories of law enforcement agents for the purpose of finding evidence of crime with which to prosecute a suspect or an accused person in a court of competent jurisdiction.

Searches therefore are an integral part of pre-trial investigations under section 6 (1) of the Criminal Procedure Act (CPA), Section 28 Police Act, Section 44 (3), 78, 79 and 127 of the Criminal Procedure Code (CPC) and section 150 (1) of the Customs and Exercise Management Act (CEMA), among other enabling laws and enactments.

Criminal litigation is procedural and highly technical, which is why failure to adhere to certain rules may lead to the setting of a criminal free or the punishment of an innocent person.

Evidence is a core element in criminal prosecution and it is the prosecution (the Commissioner of Police on behalf of the State or Attorney General either State or Federal) that has to prove its case beyond reasonable doubt that the accused person actually committed the offence alleged.

Therefore, to prove the actual commission of a crime by an accused person, the police, during pre-trail investigation, must ensure that proper investigation is carried out and necessary exhibits relating to the offence are obtained through various means.

Proper investigation may require that the conduct of search on the body of the suspect, his home, office, car, aircraft, ship, personal effects and such other places or properties to obtain documentary or material evidence, whenever necessary during investigation. This is all with the aim of proving the case against the accused beyond reasonable doubt.

A police officer is empowered under Section 28 of the Police Act, Section 1 of the Criminal Procedure Act and Section 44 of the Criminal Procedure Code to search the body of suspects whenever arrest is made, especially if the subject matter of the offence can be immediately found on him.

For example if a suspect is alleged to have snatched a sum of money from a victim and was immediately apprehended under Section 4 of the Police Act, it is expedient that the Investigating Police Officer (IPO) should search the body of the suspect with a view to recovering the said sum or conduct a search on his personal effects if the suspect is carrying a bag or such other property.

Section 29 of the Police Act permits a police officer to detain and search a suspect but limited to offences of fraud or dishonesty.

The power of police officer is further expanded in Section 4 of the Police Act which expressly, among other lawful duties, includes preventing and detecting crime, to apprehend offenders and to preserve law and order, protect life and property, and others.

But where a search is to be conducted on a woman, it must be done by a female law officer or law enforcement officer as stipulated under section 6 (2) Criminal Procedure Act, Section 44 (3) Criminal Procedure Code, Section 32 National Drug Law Enforcement Agency (NDLEA) and Section 150 (1) of the Customs and Exercise Management Act.

That a law enforcement officer is authorized to search a suspect does not translate to inflicting bodily harm on the suspect during search or subjecting the suspect to inhuman treatment, which is why Section 82 of the Criminal Procedure Code expressly provides that searches shall be with strict regard to decency and respect for the dignity of the human person.

A search warrant is procurable by a police officer or law enforcement agent upon information on Oath and the warrants when issued enables the executing police officer(s) to enter into a premise or aircraft to search items specified therein and shall seize and material suspected to be in connection with the alleged offence under investigation.

The general rule is that for a search to be conducted on premises, the police officer or any other officer conducting the search must arm himself or herself with a search warrant. And when search is conducted on premises without a warrant it becomes an unlawful search. Exception to this rule is where a person to be arrested is suspected to be within particular premises; such apartment or premises may be searched for purposes of having him arrested.

The authority to issue a search warrant is vested in a Judge or Magistrate under section 107 of the Criminal Procedure Act and Section 74, 75 and 76 of the Criminal Procedure Code.

A Justice of the Peace is also a competent person to issue a search warrant as well as a superior police officer above the rank of Cadet Assistant Superintendent of Police, preferably a Chief Superintendent of Police (CSP).

Such power of the superior police officer to issue search warrant is limited only to matters relating to recovery of stolen property or other such proprietary offences. Warrants when issued remain in force until it is either executed or cancelled by the court that issued it as provided under Section 109 (2) of the Criminal Procedure Act.

A search warrant may be issued and executed on any day including a Sunday and public holiday as provided under Section 111 (1) of the Criminal Procedure Act and shall be executed between the hours of 5.00am and 8pm unless there is an endorsement permitting its execution at any other time.

The executing officer has right of ingress and egress within the validity period of the warrant to break into and out of the premises for the sole purpose of reasonably executing the warrant. See also Section 7, 8 and 112 (2) of the Criminal Procedure Act and Sections 34 (3) and 84 of the Criminal Procedure Code.

It is trite that where a warrant expressly states specified time of execution and the executing officer violates such lawful order; such act of the police officer becomes unlawful and can be set aside by a court of competent jurisdiction and police officer liable in a civil action.

The valid execution of a search warrant is anchored on Section 78 of the Criminal Procedure Code which expressly states that a search warrant should be executed in the presence of two respectable inhabitants in the neighbourhood to be summoned by the person to whom the warrant is addressed.

If the premise to be searched is occupied by a woman in Purdah and unless she is the one to be arrested, she shall be informed that she is at liberty to withdraw before the executing officer enters the premises and shall give her every reasonable time or facility to perfect her withdrawal.

This procedure is only applicable in Northern Nigerian where the Islamic injunctions are adhered to in certain pre-trial investigations. It will therefore be unlawful for a police officer to enter the apartment of a Muslim woman in purdah to execute a warrant without first adhering to this provision.

Also, a customs officer may without a search warrant enter or break into a place where there are reasonable grounds to suspect that something worthwhile and liable to forfeiture is kept or concealed under Section 147 (1) of the Customs and Exercise Management Act; while Section 32 of the NDLEA Act empowers a Police Officer, a custom officer, any member of the armed forces, the director or any officer of the NDLEA to enter without search warrant, search any land, building, et al, which he has reasons to believe is connected with the commission of an offence under the Act.

Before a search is conducted by a police officer, it is necessary that such police officer should first be searched to ensure that he or she is not in possession of certain incriminating materials or weapons which can be planted in the premises to implicate the suspect where there the warrant executing officer has personal scores to settle or have been settled to implicate the suspect.

It is also to prevent the suspect alleging that the exhibit found in his premises was planted by the warrant executing police officer. This process is however not a legal requirement hence the failure to search the officer’s body before he or she conducts the search does not make the search illegal or unlawful or wrongful.

Besides, the person whose body or premises is to be searched should first be allowed to search the body of the warrant executing officer (the police) before commencing the search.

In State versus Musa Sadau (1968) NMLR 208, the accused persons alleged that the item recovered in the course of the search was buried there by the officer who conducted the search so as to implicate him.

Section 37 of the 1999 Constitution (as amended) provides for the right to privacy which is why whenever a constitutional or statutory right of a citizen is to be derogated from, maximum care must be taken to ensure that derogation is for good cause and every provision relating to such derogation must be complied with.

Therefore, whenever a person causes the premises of another to be searched wrongfully, he or she would render himself or herself liable in civil action.

This rule states that if a person without reasonable cause, procure or cause the procurement of a search warrant pursuant to which another person’s property, car, ship, office, personal effect or any other device was searched by a police officer, or even leading to his arrest, detention and/or prosecution, the person who laid such malicious complaint on the basis of which the police officer acted will be liable in damages. In the same vein, in the case of a complaint leading to the arrest and detention of the suspect, the complainant will be liable for false imprisonment.

Therefore, it is important that the complainant must be sure of the complaint brought to the police or law enforcement agent otherwise he/she 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.

Source: Independent

Evidence Act: Medical Report Need not be from a Government Hospital

IVWIGHRE vs. STATE (2018) LPELR-44862(CA)
EVIDENCE – MEDICAL EVIDENCE: Whether a medical report must be issued from a government hospital to be admitted in evidence.
PRINCIPLE
“The medical report, Exhibit “B” corroborated the fact that PW1 was violated.
In my view, the learned trial Judge was right in law when he held that the PW1 suffered sexual assault. And Exhibit “B” the medical report tendered in this case showed that on examination of PW1, laceration and bruises of the hymen was noticed on her. The Learned Counsel for the Appellant is not contesting the fact that Exhibit “B” corroborated the testimony of PW1 that she was raped however he is not happy that the medical report relied upon by the Prosecution came from a private Medical Doctor in a private clinic instead of a government hospital.
In my view, as long as the medical report is from a qualified Medical Doctor, whether it is from a private hospital or government hospital is a non-issue. The learned trial Judge was therefore right when he held that the medical report Exhibit “B” corroborated the evidence of PW1. See the following cases:-
– AFOR LUCKY V. STATE (Supra); – ADONIKE V. STATE (Supra).”Per BADA, J.C.A. (Pp. 14-15, Paras.
E-D