OKIYE V. THE STATE (2014)

citation:LOR(22/1/2014)CA

In The Court of Appeal of Nigeria

On Wednesday, the 22nd day of January, 2014

CA/B/308C/12

Before Their Lordships

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria

TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria


Between

HON. FRANK OKIYE –Appellant

AND

THE STATE –Respondent…………………….A…………………….HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the order of Hon. Justice Idahosa of the Edo State High Court made on 26/06/11 wherein the Learned Judge ordered a bench warrant to be issued for the arrest and detention of the appellant in Charge No B/136C/2010. The following are the facts which led to this appeal:
The Appellant was a member of the Edo State House of Assembly. On the 22/2/2010, in the chambers of the Edo State House, Hon. Omokhodion moved a motion for the impeachment of Hon. Zakawanu Garuba-the Speaker of the House.This motion led to a fracas in the house as members threw caution to the wind and attacked each other with weapons such axes, tear gas and chemicals.
The House reconvened at 12.35pm and Hon. Peter Aliu was nominated and approved as Speaker Protempore of the House. Motions were raised for the suspension of Hon. Zakawanu Garuba, Hon. Aigbogun Levis, Hon. Blessing Agbebaku and Hon. Frank Okiye and they were accordingly suspended.

The Edo State House of Assembly Ad Hoc Committee led by Hon. Ise Idehen was set up to investigate the fracas, the committee gave seven recommendations which included the continued indefinite suspension of the Appellant herein, Hon. Blessing Agbebaku and Hon. Aigbogun among others.
The Police was called upon and they carried out an investigation. Their report which was dated 1/04/2010 was addressed to the Commissioner of Police with the suggestion that the file be forwarded to the Director of Public Prosecution for vetting and legal advice.

The Police report established a prima facie case of stealing and conspiracy against Benjamin Adonye and Augustine Ekata, but alluded to the fact that the acts of Hon. Frank Okiye, and Hon. Blessing Agbebaku and Zakawanu Garuba of wounding Hon. Philip Shaibu, Hon. Kabiru Adjoto and Hon. Johnson Oguma, constituted crimes, and that their arraignment was dependent on the application of the Attorney-General to the High Court as outlined by Section 26 & 28 of the Legislative Houses (Powers & Privileges) Law of Bendel State applicable to Edo State.

On 02/07/2010, a criminal summons was issued on the Appellant to appear before the court on 9/07/2010 to defend an allegation of assault causing grievous bodily harm to Hon. Philip Shuaibu.

While this was on-going, Charge No B/533M/2010 was also before the Edo State High Court wherein the appellant herein, and two others- Hon. Zakawanu Garuba and Hon. Blessing Agbebaku were jointly charged for conspiracy and unlawful assault of fellow legislatures during the above mentioned fracas.

On 20/7/2010, following the inability of the Complainant to serve the accused with criminal summons in Charge No B/533M/2010, the complainant filed and moved a motion ex parte for substituted Service. The court sat that same day. The Accused/Appellant and other accused persons were absent from court. The Accused/Appellant and other accused persons were represented by Imadegbelo (SAN) and eight other lawyers. The Prosecution counsel moved the motion for substituted service. Before the Court could give an order, Mr. Imadegbelo SAN drew the court’s attention to his preliminary objection to jurisdiction of the Court and requested to be served the criminal summons on behalf of the accused persons. The learned Trial Judge struck out the prosecution’s Ex Parte motion for substituted service and ordered service on accused persons’ counsel.

Thereafter, the Accused/Appellant’s Counsel on the 21/09/2010 filed a motion challenging the jurisdiction of the court to hear the matter in Charge B/136C/2010.

…………………….B…………………….

On the 25/10/2010, the Prosecution counsel filed a counter affidavit to the accused/appellant’s Preliminary objection to jurisdiction. The Accused/Appellant’s Counsel in turn filed a further and better affidavit in support of motion on 23/11/2010. Again, on the same 23/11/2010, the Accused/Appellant filed another motion for preliminary objection to the jurisdiction of the Court.

All the applications listed above were headed and in respect of Charge B/136C/2010.
On the 26/07/2011, the trial Court sat on Charge B/136C/2010. The Accused was absent but was represented by E. Imade Esq. and two other lawyers. Prosecution informed the court that accused has been served and was absent. Prosecution then orally applied to court for bench warrant against the accused. Accused/Appellant counsel then informed the court that they have not been able to serve the accused. The trial Court issued bench warrant against the Accused/Appellant.

Disgruntled, the Appellant his filed a notice of appeal on 1/8/2011. The records were transmitted on 30/10/2011 and deemed filed on 15/5/2013. Appellant filed his brief of argument on 26/03/2013 and it was deemed filed on 16/04/2013. Respondents filed its brief on 7/05/2013 and Appellant filed his reply on 9/05/2013.

In the brief settled by Fred Orbih SAN, the Appellant raised the following issues for determination:
1. Was the Court below not in error in holding that the requirement of personal service of the criminal summons on the appellant was fulfilled by the service of summons on his counsel?
2. Was the court below not in error in issuing a bench warrant on the appellant on the basis of the receipt of the criminal summons for and on behalf of the appellant by his counsel?
3. Whether the ruling and the order for bench warrant against the appellant is null and void.
In the brief filed by Mrs V. U. Adeleye ADPP Edo State for the Respondent, the following issues were raised for determination:
1. Whether having regard to the circumstances of this case, the service of the criminal summons on the Appellant through his counsel was proper and therefore dispenses with the need for personal service as required by law.
2. Whether in the circumstances of this case, the issuance of a bench warrant by the lower court on the appellant was in error and therefore null and void.

Because the two sets of issues identified by counsel dovetail into each other, I have crystalised all the issues into one question for determination as follows:
Whether in the circumstances, the service of criminal summons on the Appellant through her counsel was proper and made the consequential issuance of the bench warrant on the appellant valid.
Appellant’s counsel in the brief settled by Chief F.O Orbih (SAN), on this issue argued that the service of criminal summons on the appellant is a condition precedent to the issuance of a bench warrant against the appellant. Senior Learned Counsel cited Sections 96, 89(a) and 88 of the Criminal Procedure Law, Laws of Bendel State.
Senior Counsel further argued that personal service is a sine qua non to the court below issuing a bench warrant on the appellant. Counsel submitted that service on counsel is not and cannot be personal service but is at best substituted service. Counsel further argued that the approved mode of substituted service is provided for by Section 90 of the Criminal Procedure Law (Supra).

Senior Learned counsel argued that summons shall not be deemed to have been served except where it is served in the manner provided in either of Sections 89(a) or Section 90 of the Criminal Procedure Law. Learned Counsel further cited Sections 93 and 97 of the Criminal Procedure Law.

…………………….C…………………….

Senior Learned counsel posited that the Sections intend that there must be proof of service by the officer who effected service either by endorsement on the summons or affidavit of service and such endorsement or affidavit shall form part of record of service. He argued that in the instant case, there was no endorsement or affidavit of service in the record of the court below and that there was no provision for service of criminal summons on counsel. Learned accused/appellant’s counsel argued that what this means is that there was no service on the appellant. He concluded that any Order made before the proper service of the criminal summons is null, void and of no effect whatsoever.

Senior Learned Counsel further argued that following the provisions of Section 26(1) (a) of the Legislative House (Powers & Privileges) Law, the Accused/Appellant should have been served a notice to show cause why he should not be punished for the alleged offence. Senior Learned Counsel pressed the fact that there was no prior notice to show cause issued on the Accused/Appellant or his counsel before the issuance of bench warrant as the only notice to show cause existing was dated 3/07/2011. Senior Counsel submitted that since the notice to show cause dated 3/07/2011 was addressed to be served on Accused/Appellant’s counsel, and the counsel could not reach the accused between 3/6/11 and 26/7/11, there was no foundation for the issuance of bench warrant and that the issuance of the bench warrant was afflicted with a fundamental vice. Senior learned counsel cited Marion Obimonure V. Ojumoola Erinosho (1966) All NLR Pt. 245 Pg. 247, Craig V. Kanssen (1943) K.B Pt. 256 Pg. 256 at 247-248 and Sken Consult (Nig) Ltd v. Ukey (1981) NSCC Pt. 1 Pg. 11-12.

Senior Learned Counsel for the Appellant concluded that the Appellant had no notice of the criminal summons and that where there are clear provisions as to the particular mode of doing a thing, non compliance with such provisions would make the act void and cited Mark v. Eke (2004) 5 NWLR Pt. 865 Pg. 54 at 78-80.

Respondent’s counsel, Mrs V.U Adeleye ADPP Edo State, on the other hand, submitted that the service of the criminal summons on I.E Imadegbelo, counsel to the Appellant, was good service and properly dispensed with the need for personal service on the appellant. Counsel conceded that the law requires personal service for criminal summons but that where personal service has been waived by the person affected, the court can elect to effect service by the mode elected by the party. Counsel cited Ajidahun v. Ajidahun (2000) CLR 4(t); (2000) 4 NWLR Pt. 654 Pg. 605.

Learned counsel argued that the Accused/Appellant had waived his right to personal service when his counsel requested in open court that he would receive the summons. Counsel also argued that the appearance of senior learned counsel for the Accused/Appellant raises the presumption that counsel had authority of the Appellant to conduct his case which included making necessary compromises. Counsel cited Hon Bassey Etim v Hon Emmanuel Bassey Obot &Ors (2010) 12 NWLR Pt. 1004 108 Pg. 147-148, FRN v. Adewunmi (2007) 10 NWLR Pt. 1042 Pg. 399, COP v. Ayi (2005) All FWLR Pt. 286 Pg. 679, Adekanye v. FRN (2005) 15 NWLR Pt. 949 Pg. 433.

Counsel argued that the Accused/Appellant is bound by the Senior Learned counsel’s undertaking to be served. Counsel stated further that rather than challenge the compromise made by his own counsel, the Accused/Appellant adopted it by filing fresh preliminary objection on 20/09/2010 through the same counsel. Learned counsel for the Respondent argued that all applications made by the Accused/Appellant’s counsel before the trial court were done with his knowledge and consent. Counsel argued strenuously that learned senior counsel for the appellant continued appearing on the Appellant’s behalf until 26/07/11 which was about 12 months after service on counsel. Learned counsel posited that the court needed no further proof of service on the appellant apart from the consistent appearance of Appellant’s counsel on his behalf during all adjournments. Counsel cited Hon Bassey Etim v. Hon Bassey Obot (Supra) and Amori v. iyanda (2008) 3 NWLR Pt. 1074 Pg. 250.

Learned counsel for the Respondent submitted that it was after the bench warrant was issued that the Accused/Appellant suddenly woke up to reality, changed his counsel, and in the bid to continue shielding himself from justice filed this appeal. Counsel argued that any party who wishes to challenge noncompliance with the rules of court regarding improper service of originating process must do so timeously and cited Hon Bassey Etim v. Hon Bassey Obot (Supra).

…………………….D…………………….

Learned counsel for the respondent further submitted that there is a distinction between improper service and non-service stating that an irregular service can be set aside by the court upon timeous application by the aggrieved party. Counsel cited Adeigbe v. Kusimo (1965) NMLR 284 and Mark v. Eke (2004) 5 NWLR Pt. 865 Pg. 54. Counsel submitted that failure of a party to apply timeously for regularization of irregular service is deemed as acquiescence or waiver of such irregularity and that such challenge must be done before taking any further step after the disputed service. Learned respondent’s counsel further argued that a certificate of service and an affidavit of service were not the only acceptable means of proof of service. Counsel cited AG Anambra v. Okeke (2002) CLR 5(b); (2002) 10 MJSC.

Counsel further submitted that the court has discretion to take judicial notice of the records of its own proceedings therefore making it unnecessary for further proof of service before the court and cited AG Anambra v. Okeke (Supra).

Learned Counsel for the Respondent argued that the notice to show cause dated 3/06/2011 was not the originating process in the case and that the originating process was the summons dated 2/07/2010. Counsel further stated that the notice to show cause was never issued before the lower Court as it was a proposed amendment which was never effected since the Accused/Appellant never showed up in Court.

Counsel submitted that although the Accused/Appellant’s counsel accepted service for B/533M/2010 which was different from B/136C/2010, counsel submitted that B/533M/2010 was the motion for preliminary objection filed by the learned senior counsel for the appellant before receiving the summons in B/136C/2010. Counsel further argued forcefully that a glance at the two records of appeal show that the motion ex parte for substituted service was in respect of B/136C/2010. Counsel further argued that the authorities cited by the Appellant’s counsel in respect of personal service of originating processes are inapplicable to this case.

Learned Counsel in citing Section 96 of the Criminal Procedure Law submitted that it was proved to the satisfaction of the court that the Accused/Appellant was served with the summons. Counsel further cited Okoye v. C.P.M.B (2008) CLR 7(C); (2008) 11 MJSC 76, Madam Alice Okesuji v. Lawal (1991) 1 NWLT Pt. 170 Pg. 661 at 673 and that the issue of proof of service goes beyond an affidavit of service and certificate of service. Counsel argued that proof of service of the court can also be done by the records of the court which is binding on all parties including the Court and cited A.G Anambra v. Okeke (Supra).

Counsel concluded by arguing that where an originating process is not served before an order is made, it is a fundamental defect but that when the service of originating process is irregular, then it only affects procedural jurisdiction of the court which can be, and was in this case, waived by the appellant thus making the bench warrant valid. Counsel argued that the purport of service of processes was to bring the summons to the notice of the Accused/Appellant and that the preliminary objection filed by Appellant’s counsel on 21/09/2010 indicated that Appellant had notice of the charge. Counsel cited Hon. Bassey Etim v. Hon. Bassey Obot (Supra) and Kida v. Ogunmola (Supra).

…………………….E…………………….

In reply to the Respondent’s brief, Senior Learned Counsel for the Accused/Appellant pointed out that the argument on the appearance of Accused/Appellant’s counsel as contained on page 4 of Respondent’s brief of argument was not borne out by the record. Learned Senior Counsel argued that the record of appeal shows that it was the summons in Charge No B/533M/2010 which the learned counsel for the appellant accepted to be served and referred to pages 34-35 of the record. Counsel further argued that the trial Court ordered the bench warrant on the next adjourned date, 26/07/2011 contrary to the impression created by the respondent that the case came up on several occasions with Accused/Appellant failing to appear and that was the very first time the Appellant’s counsel had the opportunity to inform the court of his inability to serve the accused.

Senior learned Counsel pointed out that the contention of the Respondent’s counsel that notice to show cause was not an originating process and was not issued was a distortion of the record. Senior counsel argued that the notice to show cause on page 2 of the record was duly issued and signed by the learned trial judge on 3/06/2011 without anything on the face of the notice indicating that it was an amendment. Senior Counsel further forcefully argued that there was nothing on record to show that the summons at page 1 of the record was served on either the Accused/Appellant or his counsel. Senior Counsel submitted that the principle of waiver and acquiescence does not apply where there has been a fundamental failure to comply with the requirements of a statute and cited Udonte V. Bassey (1999) 5 NWLR Pt. 604 Pg. 610 at 619, Ben Obi Nwabueze v. Justice Obi Okoye (1989) 4 NWLR Pt. 91 Pg. 664 at 668, Mark v. Eke (Supra).

Senior Learned Counsel concluded by arguing that the mode of service of summons had been restricted by Section 90 CPL and that no other means of service can be used as the respondent cannot by conduct expand the provision.
Let us look closely at the circumstances of this case to glean what actually happened. Pages 34-37 of the record shows it all. They are set out below:
“BEFORE HIS LORDSHIP HON. JUSTICE C. O. IDAHOSA – JUDGE ON THE 20TH DAY OF JULY, 2010.
SUIT NO. B/533M/2010
BETWEEN
THE STATE …COMPLAINANT/APPLICANT
v.
HON. ZAKAWANU GARUBA
HON. FRANK OKIYE
HON. BLESSINGS AGBEBAKU …ACCUSED/RESPONDENT
Accused absent.
C.U Ozua Esq, Asst. Director for the Applicant, with him is Miss D. Okporu State Counsel for the three accused persons, with him are S. Odiase, E. Imade Esq., A. Alofoje Esq, U Ugbon Esq, Miss V. Akhere, S. Onokpachere Esq, L. Iyelea-Okun Esq. and K. Idahosa Esq.
I.E Imadegbelo Esq. S.A.N
I have filled a Motion on Notice challenging the court’s jurisdiction. It was filed on 19/7/2010 i.e. the same day this motion was filed. I submit that once the issue of jurisdiction has been raised, all other issues must wait for that issue to be determined. See NALSA & TEAM ASSOCIATES N. N.N.P.C (1996) 3 NWLR (439) 621 AT 633.
See also BAMAIYI v. THE STATE (2006) 12 NWLR (994) 221 AT 242.
C.U Ozua Esq:
I move the motion on notice filed on 19/7/2010 in the terms of the motion paper. I rely on the affidavit in support of the motion. I beg to move.
This is an ex parte motion and as such, learned senior counsel for the accused persons cannot be heard on the motion ex parte. Even the accused persons are not in court, and none of them has been served any process from the court. It is trite that criminal proceedings commence on the arraignment of the accused and not before. I submit that the right time to raise objections is at the time the charge is read over to the accused i.e. at the time of arraignment. See section 167 of CPL.
I also submit that learned counsel cannot object to a process that has not been served. This motion is merely to effect service.
I beg to submit.
Imadegbelo Esq. SAN:
I agree to be served with the summons on behalf of the accuse accused persons.
Court
The summons shall and are hereby served on Mr Imadegbelo S.A.N for and on behalf of the accused persons.

…………………….F…………………….

Now that the summons for Hon. Z. Garuba and Hon. Blessing Agbebaku have been served, the motion ex parte loses its potency. It is accordingly struck out.
(SGD)
JUDGE
20/7/2010.
BEFORE HIS LORDSHIP HON. JUSTICE C. O. IDAHOSA-JUDGE
ON TUESDAY THE 26TH DAY OF JULY, 2011
CHARGE NO.B/136C/2010
BETWEEN:
THE STATE…COMPLAINANT
V.
HON. FRANK OKIYE…ACCUSED
Accused absent.
E.E Akhimie Esq Senior State Counsel with him W.W. Uche Esq State Counsel for the State. E. Imade Esq with him are U. Egbon Esq and S.A Onokpachere Esq for the accused.
E.E Akhimie Esq.
Summons has been issued on the accused and he has been served. He is not in court. There is no reason he is not in court as an accused. I am applying for a Bench warrant to issue on the accused.
E. Imade Esq.
We accepted service of the summons in the hope that we would be able to serve the accused. Ordinarily, he ought to be served personally. We had hoped that we would remove that burden from the State. However, we have not been able to reach the accused to serve him. The fact that we accepted service of the summons does not dispense with the need to effect personal service on the accused.
Court
I have considered what learned counsel has said. In the eyes of the law, the accused person has been taking the Court for a ride. He is aware of this proceeding, but he has studiously avoided coming to Court. As an accused person, he has to be in Court. I agree with the learned prosecutor, and think it is time to issue a Bench warrant is hereby ordered against the accused. Accordingly, a Bench warrant is hereby ordered against the accused, to enable him to be brought before this court to answer the charge against him.
Case adjourned till 13/10/2011 for hearing.
(SGD)
JUDGE
26/7/2011″

It is trite law that service of processes on a Defendant/Accused is a fundamental step in litigation. A breach of it robs the court of jurisdiction to hear the case. See Okoye v. Center Point Merchant Bank (2008) All FWLR Pt. 441 Pg. 810 at 824-825.

There is no contention that in civil matters, service of process on counsel is good service. See Shahimi v. Akinnola (1993) 5 NWLR Pt. 294 Pg. 434.

In the same vein, the best proof of service is the unconditional appearance or representation of the person who has been served with the said court process. UBA v. Effiong (2011) LPELR-CA/C/107/2008.

I agree with the learned counsel for the Respondent’s submission that there is a distinction between improper service and non-service and that an irregular service can be set aside by the court upon timeous application by the aggrieved party. See Adeigbe v. Kusimo (Supra). The failure of a party to apply timeously for regularization of irregular service is deemed as acquiescence or waiver of such irregularity. Ogbuagbu JSC in Chief Abe & Anor v. UBN Plc (2005) All FWLR (Pt. 291) Pg. 1727 at 1738-1738 held that;
“The complaint improper service which has in fact brought the notice to the attention of the defendant who has by his conduct of entering appearance demonstrated that he has notice of the action, is considered as seeking to rely on technicalities”

In the instant case which involves summons and order to show cause in a criminal matter, the service of summons on an accused person is regulated by Sections 88, 89, 90, 93, 96 and 97 of the Criminal Procedure Law of Bendel State as applicable to Edo State. These Sections are set out below:
88. Every summons shall be served by a police officer or by an officer of the court issuing it or other public servant.
89. The person effecting service of a summons shall effect it by delivering it:
(a) If on an individual, to him personally;
90. If service in the manner provided by paragraph (a) of section
89 of this Act cannot by the exercise of due diligence be effected, the serving officer may, with the leave of court, affix one of the duplicates of the summons to some conspicuous part of the premises or place in which the individual to be served ordinarily resides, and thereupon the summons shall be deemed to have been duly served.
93. (1) Where the officer who served a summons is not present at the hearing of a case, proof of such service, if within the division or district of the court issuing the summons, may be by endorsement on the duplicate of such summons and when service has been effected without the division or district of the issuing court, proof of service shall be by affidavit made before a magistrate or other prescribed person and such endorsement and affidavit shall form part of the record.
(2) Such endorsement and affidavit shall show the manner in which such summons was served and in case of an affidavit may be attached to the duplicate of the summons and returned to the issuing court”

…………………….G…………………….

96. If the Court is satisfied that the accused has been served with a summons and the accused does not appear at the same time and place appointed in and by the summons and his personal attendance has not been dispensed with under Section 100 of this Act, the Court may issue a warrant to apprehend him and cause him to be brought before such Court.
97. Where a summons has been served upon the person to whom it is addressed or is delivered to any other person, the person to whom it is addressed or the person to whom it is handed, as the case may be, shall sign a receipt therefore on the back of the duplicate. Where service is not effected by handing the summons to an individual but by some other method approved by this Act, the person effecting service shall endorse on the duplicate particulars of the method by which he has effected service.
A careful perusal of Section 90 above will result in the discovery of two means of service upon an accused person envisaged by the section. The first means is personal service while the second means is by pasting on the premises of the accused which is tantamount to substituted service. The provisions of the statute are clear and unambiguous and as such the natural meaning only should be attributed to it. In the light of this case, the summons in B/533M/2010 was issued on the Accused and others on 2nd July 2010 and the prosecution went on to effect service.

Upon the abortive attempts at personal service on the Accused, the prosecution on the 20th July 2010 filed an application for substituted service and moved it that same day.
While arguing the Ex Parte application, counsel submitted that the deponent had exercised due diligence and still had not been able to effect personal service on the accused, hence the application for substituted service. The Ex Parte application is in tandem with the alternative specified in the last sentence of Section 90 of the Criminal Procedure Law. Thus, it is clear that as at the point of that application, the prosecution was still acting within the confines of the law. However, the Accused/Appellant’s counsel, Imadegbelo SAN arrested the Ex Parte application of the prosecution and undertook to effect personal service on his client.

In Ndoba (Nig) Ltd & Anor v. Mr Orabikswe (2003) FWLR Pt. 171 Pg. 1693 at 1713 the court defined personal service as processes served on an individual personally by delivering a copy of the process duly certified by the Registrar or being a true copy of the original process filed. There was no personal service in the instant case. On this fact both parties are ad idem.

The real question here is whether service on Counsel can dispense with the need for personal service. In the first instance, I must say here that the learned trial was wrong in allowing the Accused/Respondent’s counsel to address the court while the Prosecution/Applicant’s counsel had an Ex Parte application before the court. It is trite law that where a party has an Ex Parte application before a court, only the applicant party is allowed to address the court. The other party need not be in court and even when in court can only be seen and not heard. In 7up Bottling Co. v. Abiola & Sons (1995) 3 NWLR Pt. 383 Pg. 275. In N.A.A v. Orjiakor (1998) 6 NWLR Pt. 553 Pg. 253, the Court held as follows:
“The Latin expression “ex parte” means on one side only; by or for one party; done for, on behalf of; in application ex parte, only the applicant is heard. An ex parte application has no respondent. Even if the defendant in the matter is present in court, he cannot be heard unless with the permission of the court. In most cases the court does not grant such permission-

A trial court takes one of three decisions in an ex parte application, it can:
(a) refuse the application; or
(b) grant the application; or
(c) order that the ex parte application be served on the adverse party. By this, the ex parte application automatically becomes one on notice.”
The learned trial judge did none of the above.
The error did not stop there. The trial court went ahead to strike out the Prosecution’s ex parte application and allowed the Accused/Appellant’s counsel to receive the process.
The summons intended to be served on the Accused/Appellant as the learned trial judge was well aware was one to answer a charge of a felony-causing grievous bodily harm. There was no reason why the learned trial judge should have allowed counsel to be served with the originating process. We have to observe that all the cases cited by learned Respondent’s counsel relating to the waiver of personal service by the Accused/Appellant related to civil matters. This was a criminal proceeding.

…………………….H…………………….

I must say that the resolution of this case gave me some anxious moments. I was torn between the enforcement of the technical law relating to service of summons and a natural rejection of the undue advantage taken by learned senior counsel of the credulity of the learned trial judge. I was wont to be swayed by the ratio of the decision in Arc. Ayogu v. Dr. Nnamani & Ors (2005) all FWLR Pt. 283, Pg. 46 at 57-58 where the court held as follows:
“Where there is an application for substituted service in a particular manner by posting the same on the door of the person sought to be served, and counsel accepted to act as special bailiff under Order 13 r 4 of the FHCCPR 2000 (relevant rules for election tribunals) the provision of ‘may’ merited the order of the court to allow service by special bailiff in a manner the court for reason that seems sufficient to appoint such special bailiff without the need to amend the application of the manner in which the process was sought to be served by substituted service. Thus in place of personal service, the essential point is to address the difficulty of service. The wisdom of electing to exercise discretion on how the service is to be effected, with the benefit of judicial experience does not require a specific application for the appointment of a special bailiff. Moreover, the CA postulated that service being essential does not even need an application for special bailiff before order is made.”

In a civil matter, the request by the learned silk to be served with summons in respect of Suit No B/533M/2010 wherein the three accused were charged jointly would have made him a special bailiff in respect of that case and he could not have denied his obligation to receive on behalf of, and serve subsequent process on his client.
However, the issue here is that this was a criminal summons. There was no return of service of the summons in suit B/533M/2010. According to page 2 of the record, the summons in charge No B/136C/2010 was issued on 3rd June 2011 and even though there was proof that it had been served on his solicitors on record- that is Ighodalo Imadegbelo (SAN), there was no proof that it was served on the Accused/Appellant. Indeed, on 26/7/2011, Mr Imade conceded that the chambers was served with the summons but that they had not been able to serve the Appellant.

On 20/07/2010 when the Senior Learned Counsel received the summons in open court, it was in respect of the Suit No B/533M/2010. In Charge No B/533M/2010, the suit was the State v. Hon Zakawanu Garuba, Hon Frank Okiye and Hon Blessing Agbebaku. In spite of the fact that the Respondent filed supplementary record, there is nothing in the record to show that after 20/07/2010 when senior learned counsel received summons on behalf of the three accused persons in charge B/533M/2010, and promised to serve same on the accused persons, the fresh criminal summons issued in respect of Charge B/136C/2010 was served on the Accused/Appellant. We must remember that in Charge No B/136C/2010, the Accused/Appellant was charged alone. Appellant’s counsel cannot be held to be under any obligation to serve the Order to show cause issued and served on the chambers on 3/06/2011.

I cannot lose sight of the fact that the Accused/Appellant was to be served with criminal summons to show cause why he should not be punished for the offence of assault and causing grievous harm to Hon. Philip Shaibu.

Let us go back to the proceeding of 20/07/2010. As I said earlier, the learned trial Judge was wrong to have struck out the motion for substituted service of the summons on the Accused/Appellant. When faced with legal and political gladiators in civil or criminal matter with political flavour, the best course of action for a judicial officer is to stick to the letters of the law. In the words of Lord Edward Coke:
“The king ought not to be under no man, but God and the law”
More recently, Theodore Roosevelt said:
“No man is above the law, and no man is below it: Nor do we ask any man’s permission when we ask him to obey it.”
I will say no more on that head.
Instead of allowing Senior counsel to accept the process with a promise to serve without formally making him a special bailiff with the obligation of reporting service, the Court should have made the Order of substituted service on the counsel. In this case there was no Order of substituted service on the counsel to make counsel responsible to render return of service. The procedure adopted was too casual to be later enforced by the learned trial judge.

…………………….I…………………….

The Criminal Procedure Law has provided for the correct procedure for service of process on the Accused/Appellant. Where a statute prescribes a certain mode of service of a process, the non-compliance with the provisions of the statute makes the service void. See Amadi v NNPC (2000) 6 SC Pt. 1 Pg. 66; Oyun LG v. Amalgamated Building Society Ltd (2006) All FWLR Pt. 334 Pg. 1983.

Thus, counsel to counsel service or court to counsel is not, and cannot be a proper means of serving an accused person under the Criminal Procedure Law of Bendel State applicable to Edo State.
The peculiar circumstances of this case must also be considered in arriving at a decision. The first step in criminal administration upon the commission of a crime is police investigation. The next step is securing the presence of the accused person before the Court either by the use of private summons, public summons or warrant of arrest. In extreme cases where the accused is evading and refusing appearance before the court, a bench warrant is issued. All these processes of bringing the accused person before the Court are pre-trial procedure.

Criminal proceedings are commenced when an accused person is arraigned before a Court, or at least, when an information or a charge has been filed against him in Court. See Fawehinmi v. C.O.P (2002) 5 SCNJ Pg. 103 at 127.

The procedures adopted in securing the attendance of the accused before the Courts are pre-trial procedures, and processes filed before the Courts in pre-trial procedures are NOT and CANNOT be termed as originating process for the criminal proceeding.

Following the premise that a criminal proceeding commences upon the arraignment of the accused person, the conclusive originating process of a criminal proceeding is the Charge. The originating process cannot be the private summons, public summons or arrest warrant issued to compel the attendance of the accused in Court.
Also, attendance of accused person in Court is most often done by arrest and use of private summons. It is when the accused cannot be found, is at large or is evading service that either public summons or bench warrant can be resorted to. This is the general rule in criminal proceedings.

However, we cannot close our eyes to the provision of Section 26 (1) (a) of the Legislative Houses (Powers and Privileges) Law which appears to be an exception to the general rule above. The law states as follows:
“Upon application made to the High Court in that behalf by the Attorney-
General and supported by evidence on affidavit, the Court-
(a) May, if satisfied after perusal of the application and such evidence that any member or other person appears to have committed any offence under this part, cause notice to be served on such member or person calling upon him to show cause why he should not be punished for that offence”
The above stated legislation has provided for a special procedure in instituting criminal proceeding against a legislator. The law cannot be shoved aside since the Accused/Appellant was at the material time, a member of the Edo State House of Assembly and was as such entitled to enjoy benefits under the Legislative House (Powers and Privileges) Law. One of such benefits is the Section 26 (1) (a) above.
Therefore, in the criminal trial of a legislator in Edo State, the proper pretrial process is the notice to show cause and nothing else. It is settled that when a law has provided for a procedure of doing an act, non-compliance with such procedure makes the act null and void.

When a pre-trial process required by law to be served is not served before an Order is made, in this case, the notice to show cause, it is a fundamental defect as a matter of substantive law but when service of the process is irregular, it affects jurisdiction on procedure. In this case, the notice to show cause in the lower Court was issued on 02/06/2011. It is evident that there was no proof of service of the required pre-trial process on the Accused/Appellant. The bench warrant issued in the absence of service of the notice to show cause on the Accused/Appellant was thus issued in violation of the law and has to be set aside. The Order of bench warrant issued by Hon. Justice C.O. Idahosa on 26/07/2011 in Charge No B/136C/2010 is hereby set aside. Appeal allowed.

…………………….J…………………….

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A: I have had a preview of the Judgment just delivered by my learned brother, the Hon. Justice HELEN MORONKEJI OGUNWUMIJU, JCA. It’s my privilege to adopt the reasoning and conclusion reached in the said Judgment, to the effect that the appeal is meritorious.
Hence, the appeal is equally allowed by me. I abide by the consequential order contained in the said Judgment.

TOM SHAIBU YAKUBU, J.C.A.: I had the privilege of reading the draft of the judgment prepared by my Lord, Hon. Justice H.M. Ogunwumiju, JCA.
I am in complete agreement with the illuminating reasoning and the conclusion reached therein, that the appeal has merit and must be allowed. I have nothing more useful to add to it. I, too therefore, allow the appeal and set aside the order of bench warrant issued by C.O. Idahosa, CJ, against the appellant in Charge No. B/136C/2010 is, accordingly set aside.

Appearances

K.O. Obamogie with S.E. Oyamedan –For Appellant

AND

Mrs. V.U. Adeleye, ADPP, Edo State with her Mrs. A.E. Edozien CSC, Mrs. A.E.; Mrs. J.N. Igbeka ACSC and Mrs. A.E. Oyemuse SSC. Ministry of Justice –For Respondent.

Leave a Reply

Your email address will not be published. Required fields are marked *