The Federal High Court in Abuja has ruled that search warrants could not be applied for or executed against a serving President, Vice-President, Governors or Deputy Governors.
Delivering a judgment, last Wednesday, Justice Ahmed Mohammed, therefore, stopped any alleged plan to apply for a search warrant and execute same at the residences of Rivers State Governor, Chief Nyesom Wike in Abuja and other parts of the country.
Mohammed made the restraining order against the Nigeria Police Force, the Inspector-General of Police, Ibrahim Idris, the Economic and Financial Crimes Commission (EFCC) and the Department of State Services (DSS), who were the defendants in a suit instituted by Wike on May 4, 2017.
The suit, in which the judgment was delivered, last Wednesday, was targeted against the police, which Wike said had, last year, applied for a search warrant to be executed on his houses around the country.
In his verdict, the judge agreed with Wike’s lawyer, Mr. Sylva Ogwemoh (SAN), that no court process such as a search warrant could be applied for or issued by the court against a serving governor such as Wike, who enjoys immunity under Section 308 of the 1999 Constitution.
The judgment drew a contrast between sections 149 and 150 of the Administration of Criminal Justice Act, on one hand, and Section 308(1)(c) of the Nigerian Constitution, on the other hand, a scenario which worked in favour of the four categories of the public officials clothed with constitutional immunity.
The contrast favoured serving governors and others enjoying immunity under Section 308 of the Nigerian Constitution.
Mohammed noted that on one hand, sections 149 and 150 of the Constitution made it mandatory for the owner or occupant of a house or his or her representative to be present during the execution of a search warrant in the said house.
He noted that on the other hand, Section 308(1)(c) of the Constitution prohibited issuance of a court process, including a search warrant against all persons covered by Section 308 of the 1999 Constitution.
Section 308(1)(c) of the Constitution cited by the judge read, “No process of any court requiring or compelling the appearance of a person to whom this section applies, shall be applied for or issued.”
“A careful reading of section 308(1)(c) of the 1999 Constitution will show that the Constitution has prohibited the application for the issuance of any court process that will require or compel the appearance of a person enjoying immunity under Section 308 of the 1999 Constitution,” Mohammed ruled.
The judge noted that the Supreme Court had in its judgment delivered in the case of Gani Fawehinmi vs. Inspector-General of Police in 2002 prohibited any situation that could warrant a law enforcement agent from encountering a serving governor in the course of executing a court process against such governor during a criminal investigation.
The judge noted that the Supreme Court in the said judgment held that a serving governor could be investigated for criminal allegations but not to the extent that would require the physical presence of the suspected governor.
He noted:“The situation would have been different if the draftsman of Section 308(1)(c) of the 1999 Constitution has stated that a court process like the search warrant can be applied for or issued and executed whether the serving governor is physically present or not.”
The judge refused to be swayed by the argument of the police that a search warrant could be executed at a governor’s house in the absence of the governor.