ODERA SPECIALIST CLINIC V OSHIMILI SOUTH LOCAL GOVERNMENT
February 27, 2025MR. ISHOLA SAMUEL ASHAMU V. MRS. MARY OYEDOYIN BANDOH & ORS
February 27, 2025Legalpedia Citation: (2024-12) Legalpedia 27137 (CA)
In the Court of Appeal
Holden at Benin
Wed Dec 11, 2024
Suit Number: CA/B/717C/2019
CORAM
Muhammad Ibrahim Sirajo -Justice Of The Court Of Appeal
Lateef Adebayo Ganiyu -Justice Of The Court Of Appeal
Asmau Ojuolape Akanbi-Justice Of The Court Of Appeal
PARTIES
UGIAGBE ONAIWU DUMEZ
APPELLANTS
COMMISSIONER OF POLICE
RESPONDENTS
AREA(S) OF LAW
CRIMINAL LAW, CONSTITUTIONAL LAW, CRIMINAL PROCEDURE, ADMINISTRATION OF CRIMINAL JUSTICE, PRACTICE AND PROCEDURE, APPEAL
SUMMARY OF FACTS
The Appellant was to be arraigned before the High Court of Edo State on a 5-count charge dated October 21, 2019. The charges included conspiracy to commit forgery, making false documents, impersonation, and unlawfully uttering a false West African Examination Council Certificate. When the matter was mentioned on October 25, 2019, the Appellant, who was on Police administrative bail, was not in court. The prosecution informed the court that the defendant was unaware of the court date and promised his attendance at the next hearing. On November 1, 2019, the Appellant was again absent but was represented by counsel, who claimed the Appellant was ill in Abuja and had not been personally served with the charges. Despite these explanations, the trial court issued a bench warrant for the Appellant's arrest. This led to the current appeal seeking to set aside the bench warrant.
HELD
1. The appeal was allowed.
2. The bench warrant issued by the lower court was set aside.
3. The lower court was found to have acted without jurisdiction in issuing the bench warrant without first ascertaining whether the Appellant was served with the Charge Sheet and notice of hearing.
ISSUES
Whether the bench warrant ordered by the lower Court on the Appellant was properly made considering the fact that the Appellant refused to attend Court on November 1, 2019.?
RATIONES DECIDENDI
REQUIREMENT OF SERVICE – NECESSITY OF PROPER SERVICE BEFORE ISSUANCE OF BENCH WARRANT
"The provision of Section 352 of the Administration of Criminal Justice Law of Edo State relied upon by the Respondent's counsel does not support his argument. The said section deals with situation where summons has been issued and served and the Defendant, despite the service on him, refused to attend Court." – Per Muhammad Ibrahim Sirajo, J.C.A.
SERVICE OF PROCESS – EFFECT OF KNOWLEDGE OF PROCEEDINGS WITHOUT PROPER SERVICE
"It is on record that the Appellant's counsel informed the lower Court that the Appellant was aware that the Court was going to sit on 1st November, 2019, and that is why Appellant's counsel was in Court that day to move the earlier filed Appellant's application for bail. But that knowledge, no matter how it was acquired by the Appellant, together with the presence of the Appellant's counsel in Court, cannot relieve the Prosecution of its statutory duty of ensuring that the Appellant was served with the information and the notice of hearing as required by law." – Per Muhammad Ibrahim Sirajo, J.C.A.
BENCH WARRANT – CONDITIONS PRECEDENT TO ISSUANCE OF BENCH WARRANT
"And in the absence of evidence of service of the information/charge and proofs of evidence together with notice of hearing on the Appellant, the lower Court will not have the vires to issue Bench warrant against the Appellant. It is only when the Court is satisfied that the Charge and notice of hearing have been served on a Defendant or his surety and he refused to appear in Court that it can issue a Bench warrant for the arrest of that absconding or hiding Defendant." – Per Muhammad Ibrahim Sirajo, J.C.A.
PERSONAL SERVICE – REQUIREMENT OF PERSONAL SERVICE ON DEFENDANT NOT IN CUSTODY
"Section 382 (4) of the Administration of Criminal Justice Law of Edo State provides that where the Defendant is not in custody, he shall be personally served with the information and notice of trial. The evidence before the lower Court in the instant case is that at the time the Information was filed at the trial Court the Appellant was on Police bail, meaning that he was not in custody. In this situation, the law enjoins the Respondent to serve him personally with the information and trial notice." – Per Muhammad Ibrahim Sirajo, J.C.A.
SUBSTITUTED SERVICE – REQUIREMENT OF LEAVE OF COURT
"But even where personal service proves impossible, Section 382 (5) of the ACJL of Edo State requires that he be served by substituted means through his counsel or surety or any adult member of his household, with the leave of Court. The leave of Court, first sought and obtained, is a condition precedent to a valid substituted service of the Information and notice of trial on a Defendant." – Per Muhammad Ibrahim Sirajo, J.C.A.
ABUSE OF JUDICIAL POWER – ISSUANCE OF BENCH WARRANT WITHOUT PROPER SERVICE
" This is a case where there is neither personal nor substituted service of the information and notice of hearing on the Appellant, yet the Appellant was punished for refusal to attend Court, by the issuance of Bench warrant for his arrest. This case qualifies as a case of abuse or misuse of judicial powers by the Court of trial." – Per Muhammad Ibrahim Sirajo, J.C.A.
JURISDICTION – EFFECT OF LACK OF SERVICE ON COURT’S JURISDICTION
" In this case, the trial Court had admitted that the charge/information and Notice of trial had not been served on the Appellant. Of course, the law is that a Court has no jurisdiction to issue an order against a person who has not been served with a Court process to appear before it, and has not been formally arraigned or produced before it, as it lacks power to pronounce on/against such a person." – Per Muhammad Ibrahim Sirajo, J.C.A.
WAIVER OF RIGHTS – FILING OF BAIL APPLICATION NOT AMOUNTING TO WAIVER OF SERVICE
" Therefore, the Respondent cannot assume or speculate that the Appellant in this appeal briefed the law firm of Paul Osarenkhoe, just because the law firm took steps by filing an application for ball or appeared on behalf of the Defendant. The filing of a bail application and or appearance of counsel on behalf of a defendant is not sufficient proof of service of the charge or summons on a defendant." – Per Asmau Ojuolape Akanbi, J.C.A.
BENCH WARRANT – PREREQUISITES FOR ISSUANCE
" In this appeal, there is no evidence in the record transmitted to this Court showing that upon the Appellant being served with the summons or the charge against him, failed to appear in Court and in the absence of any evidence stating that the Defendant was served with the charge personally and or summons issued on him to appear in Court on the 25/10/2019 and 1/11/2019 respectively, the Learned Trial Judge lacked the powers to have issued a Bench warrant against the defendant on the 1/11/2019." – Per Asmau Ojuolape Akanbi, J.C.A.
VALIDITY OF BENCH WARRANT – TIMING OF ISSUANCE
"At the time the Bench warrant was issued for the arrest of the Appellant, the necessary ingredients or prerequisites for the exercise of that power under the Administration of Criminal Justice Law were either non-existent or were yet to mature." – Per Muhammad Ibrahim Sirajo, J.C.A.
JUDICIAL POWER – LIMITS OF COURT’S POWER TO ISSUE BENCH WARRANT
"A combined reading of Ss.352 & 382 of the Administration of Criminal Justice Law of Edo State (ACJL)will reveal that, where summons has been issued on a defendant, and he fails to appear, the Court, if satisfied that summons has been issued, is empowered to issue a warrant for the arrest of the defendant." – Per Asmau Ojuolape Akanbi, J.C.A.
PROOF OF SERVICE – APPEARANCE OF COUNSEL NOT SUFFICIENT
" The filing of a bail application and/or appearance of counsel on behalf of a defendant is not sufficient proof of service of the charge or summons on a defendant. See Ss.352 & 382 of ACJL. It is glaring the defendant has not waived his constitutional right to fair hearing." – Per Asmau Ojuolape Akanbi, J.C.A.
PREREQUISITES FOR BENCH WARRANT – NEED FOR EVIDENCE OF SERVICE
" There is no evidence before the trial Court suggesting that the Respondent encountered difficulties in effecting personal service on the Appellant… no leave of the trial Court was obtained to serve the Appellant with the originating processes through a proxy." – Per Muhammad Ibrahim Sirajo, J.C.A.
CASES CITED
STATUTES REFERRED TO
1. Administration of Criminal Justice Law of Edo State, 2018
2. Constitution of the Federal Republic of Nigeria, 1999 (as amended)
3. Criminal Code, Cap 48, Vol. II, Laws of the Defunct Bendel State of Nigeria, 1976
4. West African Examination Council Act, Cap W4, Laws of the Federation of Nigeria, 2004
5. Court of Appeal Rules, 2021
