Assault

MODUPE FASANMI, J.C.A.(Delivering the Leading Judgment):This is an appeal against the ruling of the Ogun State High Court of Justice in Suit No. HCT/309/97 delivered on the 14th of June 2012 which allowed the execution of judgment levied on the 12th of February 2012.
By a writ of summons and statement of claim both dated the 22nd of December 1997, Mrs Foluke Mudashiru commenced an action against the Appellant herein as the Defendant claiming the following reliefs to wit:
(1) The sum of N25,300.00 as damages for assault to have been occasioned to the Plaintiff by the Defendant (the Appellant herein) on the 13th of October 1997.
(2) An injunction restraining the Defendant from committing any further act of assault on the Plaintiff.
At the end of the trial, the learned trial Judge on the 15th of October 2002 found the Appellant liable in assault and awarded the 1st Respondent the sum of N6,324,520.00 as damages against the Appellant. The Court also made an order restraining the Appellant from further committing any act of assault against the 1st Respondent.
Dissatisfied with the ruling, the Appellant appealed against the decision to the Court of Appeal. On the 30th of November, 2009 the Court of Appeal while delivering final judgment on the Appeal held that the Amended Notice of Appeal filed by the Appellant on 1st December, 2005 was incompetent and struck same out. (See the judgment at pages 105 to 114 of the records.) Thereafter, the Appellant filed an application before the Court of Appeal to re-list the said incompetent Amended Notice of Appeal but the application was refused by the Court in a ruling delivered on 10th May, 2010 (see pages 115-119 for the records of the proceedings and ruling). The Appellant being dissatisfied appealed to the Supreme Court against the refusal to re-list the appeal. On 31st October, 2011 when the matter came up for hearing at the Supreme Court, the Appellant withdrew the appeal which was dismissed. (See pages 120-123 of the record) He thereafter filed an application before this Honourable Court the next day seeking extension of time within which to appeal against the decision of the trial High Court given on 15th October, 2002 and also another application seeking stay of execution. (See pages 57-69 of the records of appeal).
It must be noted that the said application for extension of time to appeal had no proposed Notice of Appeal attached to it, and as such was incompetent.
While these applications were pending, the Respondent caused execution to be levied attaching only a Mercedes Benz car of the Appellant. She thereafter on the 22nd of February, 2012 filed an application for leave to attach the immovable property of the Appellant at No. 7 Water Street, Fairfields Estate, Iju, Ogun State. It was at this stage that the Appellant filed his application dated 12th March, 2012 seeking to set aside the execution levied and also damages for wrongful execution against the 1st Respondent and the 2nd Respondent i.e. the Deputy Sheriff.
The learned trial Judge after listening to the arguments of counsel on both sides and the processes filed by the parties on the application filed by the Appellant on the 12th of March 2012 seeking to set aside the execution levied and also damages for wrongful execution against the 1st Respondent ruled in favour of the Respondents and allowed the execution of judgment levied on the 12th of February 2012 by the Respondents.
Dissatisfied with the ruling,

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Appellant filed his notice of appeal at pages 299-303 of the record on the 15th of June 2012. Record of appeal was transmitted on 18/7/12. Amended Appellants brief of argument was filed on 17/10/14 while the 1st Respondents amended brief of argument was filed on the 30th of Oct. 2014.
At the hearing of the appeal, learned Counsel for the 2nd Respondent informed the Court that 2nd Respondents brief is not ready. Learned counsel for the Appellant informed the Court that the Court has granted application for the appeal to be heard on the existing briefs on the 21st of November 2016 since the time to file 2nd Respondents brief has lapsed.
Appellant distilled four issues for determination thus:
1) Whether an execution can be levied where the appellate process been set in motion and there is a Motion for Stay of execution pending against the judgment of the Court.
2) Whether an issue of law bordering on the expiration of a Writ of Fifa cannot be validly raised in the Appellants Reply on Points of Law.
3) Considering the circumstances of this case and the provisions of Order II Rule 10 of the Judgment Enforcement Rules, whether an Application to set aside unlawful execution on an expired writ must be commenced by a fresh suit.
4) Whether the trial Court was right when it dismissed the Appellants Application to set aside the executions, including a Motion for Stay of Execution of the trial Courts Judgment pending before the Court of Appeal.
1st Respondent distilled four issues for determination thus:
1) Whether there was in fact a pending appeal at the time execution was levied by the Respondent in this matter. (Ground One)
2) Whether the issue of expiry of the writ of fifa, before it was executed was raised in the Appellants application dated and filed 12th March 2012 before the lower Court. (Ground Two)
3) Whether having regards to the reliefs claimed therein, the Appellants application for setting aside execution ought not to have been commenced as a fresh action by writ of summons instead of by Motion on Notice. (Ground Three)
4) Whether under the facts and circumstances of this case the trial Court rightly granted the Respondents application to attach the Appellants immovable property at No. 7 Water Street, Fairfileds Estate, Iju, Ogun State. (Ground Four)
I have examined the issues distilled for determination by the parties and I observe that the issues are the same but couched differently. The appeal will be determined on the 1st Respondents issues since they are more clearer and apt to the controversy in issue between the parties.
Before going into the issues Respondents counsel submitted that ground five of the grounds of appeal of the Appellant is incompetent being an omnibus ground of appeal which cannot arise from an interlocutory ruling where trial was not conducted and evidence led. He referred to the case of Udossen v. Necen (1997) 5 NWLR (Pt. 506) page 570 at 582 paras F G. He urged the Court to strike out ground five of the notice of appeal. Submitted further that no issue was formulated to cover ground four of the Appellants ground of appeal, the ground must be deemed abandoned and struck out.
Learned counsel for the Appellant in his reply brief submitted that evidence is not limited to oral evidence but also includes affidavit evidence. He submitted that ground 5 is therefore competent and ground four is questioning the grant by the trial judge of the 1st Respondents application to attach the immovable property of the Appellant. He urged the Court to discountenance the preliminary objection of the 1st Respondent.

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When an Appellant alleges that a decision is against the weight of evidence, he means that when evidence he adduced is balanced against that of the Respondent, the judgment in the Respondents favour is against the weight which should have been given having regard to the totality of the evidence. An omnibus ground of appeal is a general ground of fact complaining against the totality of the evidence adduced at the trial. It is not against specific finding of fact or any document. It cannot be used to raise any issue of law or error in law. See the cases of Akinlagun v. Oshoboja (2006) 12 NWLR (Pt. 993) page 60, Agbamu v. Ofili (2004) 5 NWLR (Pt. 867) page 540 and Faneroli v F.R.N. (2016) ALL FWLR (Pt. 856) page 366 at 395 paras D G.
In this case, this is an interlocutory appeal where trial was not conducted and evidence led. In Akinlagun v. Oshoboja (supra) the Supreme Court per Kalgo J.S.C. stated as follows:
An omnibus ground of appeal is a general ground of fact complaining against the totality of the evidence adduced at the trial
I am emboldened by the pronouncement of the learned jurist Kalgo J.S.C. stated above to hold that ground 5 is incompetent and is liable to be struck out. It is hereby struck out accordingly.
Issue 4 was distilled from ground 4. The objection of the 1st Respondents counsel on ground 4 is hereby overruled.
Issue One
Whether there was in fact a pending appeal at the time execution was levied by the Respondent in this matter.
Learned counsel for the Appellant submitted that where the judgment appealed against is executed whilst a motion for stay of execution of the judgment and a motion for extension of time to appeal is pending before the Court of Appeal, the Court of Appeal is competent to order the setting aside of the writ of attachment and thus return the parties to status quo pending the determination of the application before it. He referred to the cases of Vaswani Trading Co. v. Savalakh (1972) 12 SC page 77 and Nigerian-Arab Bank Ltd. v. Comase (1996) 6 NWLR (pt. 608) pg 648 at 665-666 paras H-A.
Submitted further that whether there was appeal before this Court is not for the Respondents to determine. Submitted that there is no point in applying to the Court below when the time to appeal has expired, for enlargement of time cannot be granted by the lower Court but by this Court. Submitted that it is in the interest of justice that the Respondent ought to have waited for this Court to consider the Appellants applications before it peremptorily levied execution on the Appellant. He urged the Court to resolve issue one in favour of the Appellant.
Learned counsel for the 1st Respondent submitted that the grounds for setting aside the execution by the Appellant were clearly stated in the motion paper on pages 2-3 of the record of appeal. In addition to those grounds, it was stated by the Appellant in paragraphs 3.1.2 and 3.1.3 of the affidavit in support that:
1.2 As at the time the aforesaid execution was levied on the 2nd of February 2012, there was a valid Appeal and an Application for a Stay of Execution pending appeal at the Court of Appeal Ibadan Division against the Judgment of the Honourable Court delivered on the 15th day of October 2002 and upon which the Writ of Attachment dated 11th June 2010 executed was ostensibly issued.
1.3 That the Notice of the pendency of this Appeal and the Application for a Stay of Execution pending appeal were duly served on the Deputy Sheriff of this Honourable Court, with acknowledgment of service; the processes were likewise served on the Plaintiff/Respondents Solicitors.

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He argued further that Appellant canvassed his application at the lower Court on the basis that there was a valid appeal and application for stay of execution pending at the time execution was levied. He contended further that there is no evidence of a valid or pending appeal on the record. He referred to the case of Abubakar v. Chucks(2007) 12 SC page 1 at 22 per Akintan JSC where he made it clear that no order for stay can be granted when there is no pending appeal.
He submitted further that Appellant filed an application for extension of time to appeal dated 31st of October 2011 which has been attached as Exhibit PA11 to the Appellants application for setting aside. Exhibit PA11 does not even have a proposed notice of appeal. He submitted that Appellant cannot rely on such incompetent process to contend that he had a valid pending appeal at the time execution was levied. He urged the Court to resolve issue one against the Appellant.
The onus is on the Appellant who asserts that he has a pending appeal to show this Court that he has one. The basis of an appeal is the filing of the notice of appeal and where there is no evidence on record showing that a notice of appeal was filed, any purported appeal is incompetent. See the case of U.B.A. Plc v. Ekanem (2010) 6 NWLR (pt. 1190) page 207 at 226. It is also the law that no order for stay of execution can be granted when there is no pending appeal. SeeAbubakar v. Chucks (supra).
In the instant case, Appellant filed application for extension of time to appeal and an order for a stay of execution, dated 31st of Oct. 2011. Exhibit PA11 was attached to the Appellants application for setting aside. For the Applicant to earn the favour of the Court in an application for extension of time to appeal, he must satisfy two conditions which must co-exist conjunctively i.e. to say there must be good and substantial reason why a discretion should be exercised in favour of the applicant and secondly that the grounds of appeal sought to be introduced are arguable. In that wise, the application must have a proposed notice of appeal attached to the application showing that the grounds of appeal are arguable. See the cases of Yanwuren v. Modern Signs (Nig.) Ltd (1985) 1 NWLR (pt. 1) pg 244, Balogun v. Afolalu (1994) 7 NWLR (pt. 355) page 206, Kotoye v. Saraki (1995) 5 NWLR (pt. 395) page 256 and Itsueli v. S.E.C. (2016) 6 NWLR (pt. 1507) page 160 at 173 paras A-C per Ogunbiyi JSC and page 174 para B-C per Nweze JSC. Regrettably Exhibit PA11 did not donate any proposed notice of appeal to the application. It was not just that there was no appeal pending, there was no competent application for extension of time within which to appeal. What the Appellant filed was a scarecrow or a sham. The mere filing of an application for extension of time to appeal does not operate as stay of execution but the filing of a valid notice of appeal coupled with an application for stay of execution. See the case of Mobil Oil (Nig.) Ltd v. Agadaigho (1988) 2 NWLR (pt. 77) page 383.
The learned trial Judge at page 295 of the record had this to say:
The need for there to be a valid pending appeal before an application for stay of execution could be entertained has been restated in numerous authorities which are binding on this Court. See Mobil Oil (Nig.) Ltd v. Agadaigho (1988) 2 NWLR 383; Martins v. Nicannar Foods (1988) 2 NWLR (pt. 77) 75. I agree with the Claimants counsel that the cases relied on by the Defendants counsel are inapplicable to the relevant facts in this application.
Appellant cannot rely on such incompetent process to contend that he had a valid pending appeal at the time execution was levied. Issue one is hereby resolved against the Appellant.
Issue Two
Whether the issue of expiry of the writ of fifa before it was executed was raised in the Appellants application dated and filed on 12th March 2012 before the lower Court.

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Learned Counsel for the Appellant submitted that expiration of writ of fifa can be validly raised in the Appellants reply on point of law. He submitted that the facts surrounding this issue are not disputed by the parties. A writ of fifa was issued by the trial Court on the 11th of June 2010 but was executed against the Appellants property on 2nd of February 2012, one year and seven months after the issuance of the writ at which date, the time stipulated by law had clearly elapsed. Learned counsel for the Appellant relied on Order IV Rule 10 of the Judgment Enforcement Rules 2004 which provides:
Any process, if unexecuted shall remain in force for one year only from its issue.
Learned counsel for the Appellant submitted further that the basis upon which the Respondents application was granted for leave to attach the movable properties of the Appellant was predicated on the expired writ; a writ which also formed the basis of the Respondents subsequent application to attach the Appellant’s immovable property. For leave to attach an immovable property to be granted, there must be a valid writ of attachment in the form prescribed by law. He referred to the case of Madukolu & Ors v. Nkemdilim (1962) 2 S.C.N.N. L. R. page 341. He urged the Court to resolve issue two in favour of the Appellant.
Learned counsel for the 1st Respondent submitted that the issue of expiry of the writ of execution was not part of the grounds for seeking the setting aside of the execution levied. He referred to the record of proceeding at page 279 lines 18-23 where the issue was raised that the Appellant did not make the writ of execution he wants to set aside part of his application which fact Appellant’s counsel conceded to. Notwithstanding this admission by the Appellant’s counsel, Appellant smuggled in a writ of attachment into the records of appeal at page 82 of the records. Submitted that this amounts to trying to produce and rely at appeal stage on a document which did not form part of the proceedings of the lower Court. He urged the Court to discountenance this document. Learned counsel for the Respondent submitted that the actual copy of the writ executed should have contained the endorsement of what was attached, which is not the case here. He urged the Court not to look at this document. Submitted that since the issue of expiry of the writ of execution was not raised as part of the grounds for seeking the setting aside of the execution levied against the Appellant, it ought not to be considered at all either by the lower Court or by this Court. Submitted that the learned trial Judge was right in striking out the application and the finding of the lower Court cannot be faulted. He urged the Court to resolve issue two against the Appellant.
Where a point was not made an issue before a lower Court, that Court ought not to base its decision on such point not raised and canvassed before it. Also, an appellate Court ought not to base its decision on appeal on such issue. See the case of Ijeonyenani v. A.C.B. Ltd (1997) 6 NWLR (pt. 508) page 340 at 347 para F.
The record of proceedings at page 279 will be reproduced for ease of reference. Respondents counsel told the Court that:
Amachina The defendants did not attach the writ of execution so that argument on it is incompetent. We have stated this earlier. He raised the issue in a reply when we can no longer reply.
Adamolekun The rules did not state we should set out grounds. I concede that I did not attach the writ of attachment because I did not have it at the time this application was filed.
Let me take off from where the

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Appellant counsel submitted that the rules did not state that they should set out grounds in an application. Order 7 Rule 1 of the Court of Appeal Rules, 2011 was the extant rule when Appellant filed his application. It is now Order 6 Rule 1 of the Court of Appeal Rules 2016. Both of them are in pari materia. The order states:-
Every application to the Court shall be by notice of motion supported by affidavit and shall state the rule under which it is brought and the ground for the relief sought.
The underlined is mine for the purpose of emphasis. From the above provision it is mandatory that the grounds must be stated. Appellant is therefore bound to confine himself to the issues raised, in his motion paper as the trial Court is a Court of record. See Ali v. Obande (1999) 9 NWLR (Pt. 620) page 563 at 576 paras AB. The learned trial Judge at page 290 of the record had this to say:-
The defendants counsel in paragraphs 2.1 2.8 of his reply to the Claimant’s counter affidavit argued extensively for the first time that the writ of attachment had expired by 7 months when it was purportedly executed on 2/2/2012. He cited Order 1 Rule 7 and 12 and Order IV Rule 10 of the Judgment Enforcement Rules. Order IV Rule 10 in particular states that any process, if unexecuted, shall remain in force for one year only from its issue I have examined the entire application and it cannot be doubted that the issue was being raised for the first time in the defendants reply. It is trite law that a plaintiff is not permitted to make a departure in his reply by setting up a new and different case from that in the statement of claim or originating pleadings. See Adeniyi v. Fetuga (1990) 5 NWLR (Pt. 150) page 375 at 391. The affidavit and counter affidavit filed in this application are analogous to pleadings commenced by writ of summons. When the defendant raised the issue of expiration of the writ of attachment in his reply, the Claimant no longer had a right of reply and that was over reaching and prejudicial. I agree with Amachina that the submissions in paragraphs 2.1. 2.8 of the reply dated 24/5/2012 are incompetent and liable to be struck out. They are accordingly struck.
There is substance in the finding of the learned trial Judge because a reply is not an avenue for the applicant and in this instance the Appellant to improve upon his submissions in the main argument or to fine tune same. SeeAnyaonu v. Chukwuma (2010) 40 WRN page 118 at 147 lines 45 5Appellant cannot change the goal post at his whims and caprices. The issue of expiration of the writ of attachment was raised for the first time in the Appellants reply. Where is the fair hearing to the Respondent who no longer has a right of reply. Appellant’s reply was over reaching and prejudicial since Respondent no longer has a right to reply. Issue two is hereby resolved against the Appellant.
Issue Three
Whether having regards to the reliefs claimed therein, the Appellant’s application for setting aside execution ought not to have commenced as a fresh action by writ of summons instead of by motion on notice.
Learned counsel for the Appellant submitted that the Judgment (Enforcement) Rules is a subsidiary legislation made pursuant to the Sheriff and Civil Process Act. He contended that by the provisions of Order II Rule 10 of the Judgment (Enforcement) Rules 2004 (made pursuant to the Sheriff and Civil Process Act) . . . any application by a party for an order or direction of a Court in relation to any judgment, execution or process shall be made in the same manner as an application for an interlocutory order in that Court. This provision confirms Order 39 Rule 1 of the Ogun State High Court Civil Procedure Rules 2004that provides:-
Where by these rules any application authorized to be made to a Judge, such application shall be made by motion. . .
He urged the Court to hold that the claim for special damages obeyed the procedure prescribed by the

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applicable written law and corresponding rules. Learned counsel for the Appellant urged the Court to resolve issue 3 in favour of the Appellant.
Learned counsel for the 1st Respondent submitted that a person cannot seek to recover damages allegedly arising from wrongful execution without leading evidence in proof of the damages he claimed to have suffered. It is therefore an issue that must go to trial and prove by evidence. Submitted that Sections 41 -43 of the Sheriffs and Civil Process Act which are applicable to this matter intend that the Appellant can only bring an action to challenge execution in the circumstances of the instant case, not by an interlocutory application. Section 41 clearly and expressly said that . . . any person aggrieved may bring an action for any special damage sustained by him. . .
He submitted that the provisions of Order II Rule 10 of the Judgment (Enforcement) Rules cannot prevail over the clear provisions of Sections 41 43 of the Act. He submitted that the Provisions of Order II Rule 10 of the Judgment (Enforcement) Rules are not applicable to the facts of the instant case. He urged the Court to resolve issue 3 against the Appellant.
When the words of a statute are clear and unambiguous, the Court should accord them their ordinary and plain meaning. See the case of Obiawenbi v. CBN (2011) 7 NWLR (pt. 1247) pages 465 at 491 paragraph E.
Order 11 Rule 10 of the judgment (Enforcement) Rules provides:-
Subject to any provision to the contrary, any application by a party for an order or direction of a Court in relation to any judgment, execution, or process shall be made in the manner as an application for an interlocutory order in that Court.
The provisions of Order II Rule 10 of the Judgment (Enforcement) Rules cannot prevail over the clear provisions of Sections 41 43 of the Act for the following reasons:-
(a) The provisions of Order II Rule 10 of the Judgment (Enforcement) Rules are clearly made subject to any provision to the contrary. Sections 41 43 are clearly provisions to the contrary. The provisions of Order II Rule 10 of the Judgment (Enforcement) Rules are therefore clearly intended to be subservient to other provisions of the parent statute. See Kabo Air Ltd. v. Oladipo. (1999) 10 NWLR (Pt. 624) 517 at 533 B C;
(b) Order II Rule 10 of the Judgment (Enforcement) Rules are provisions of subsidiary legislation made under the Sheriffs and Civil Process Act and cannot therefore override provisions of the Act. SeeF.G.N. v. Zebra Energy Ltd(2002) 18 NWLR (Pt. 798) 162; UNTHMB v. Nnoli (1994) 5 NWLR (Pt. 363) 376;
(c) The provisions of Order II Rule 10 of the Judgment (Enforcement) Rules apply to situations where applications are made for directions and not for situations where there is substantive claim for damages.
The law is trite that claim for special damages must be specifically pleaded and strictly proved. See Ngilari v. Mothercat Ltd. (1999) 13 NWLR (Pt. 636) page 626 at 647 paras F H. This cannot be achieved by motion on notice. See Transkomplet Nig. Ltd. v. Galadima (1999) 3 NWLR (pt. 596) page 631 at 644 645 paras B C.
The learned trial Judge at pages 291-292 of the record had this to say:
The question is: when the statute says any person aggrieved may bring an action . . . what does it mean? I have carefully perused the provisions of Section 41 43 of the Act. I wish to

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observe that Sections 42 and 43 of the Act repeatedly employed the phrases and expressions like no action shall be commenced if an action is commenced and In any action commenced. Section 42 specifically provides:
1. No action shall be commenced against any bailiff for anything done in obedience to any process issued by a Court unless:
a) a demand for inspection of the process and a copy thereof is made or left at the office of the bailiff by the party intending to bring the action or his solicitor or agent, in writing by the person making the demand; and
b) The bailiff refuses or neglects to comply with the demand within six days after it is made.
2. If an action is commenced against a bailiff in a case where such demands has been made and not complied with judgment shall be given for the plaintiff if the process produced or proved at the trial.
Section 43 provides: In any action commenced against a person for anything done in pursuance of this Act, the production of the process of the Court shall be deemed sufficient proof of the authority of the Court previous to the issue of the process (Emphasis and underlining supplied by me).
The generous use of the underlined expressions above in Section 41 42 left me in no doubt that the action contemplated in those provisions is a fresh substantive action and not to simply join the Deputy Sheriff in an interlocutory application for the purpose of claiming damages against him jointly with the claimant.
I agree entirely with the learned trial Judge.
Issue three is hereby resolved against the Appellant.
Issue Four
Whether under the facts and circumstances of this case, the trial Court rightly granted the Respondent’s application to attach the Appellant’s immovable property at No 7 Water Street Fairfield Estate, Iju, Ogun State.
Learned counsel for the 1st Respondent and her counsel at all material times were aware of the applications for stay of execution and extension of time within which to appeal pending before this Court when execution was levied. The Respondents by ignoring due process foisted on both this Court and the Appellant a situation of utter hopelessness. He referred to the case of Nigerian-Arab Bank Ltd v. Comex (1996) 6 NWLR (Pt. 608) 648 at 665 666 paras H A. He urged the Court to hold that the execution of the judgment of the lower Court is a nullity and that the Court should allow this appeal.
Learned counsel for the 1st Respondent submitted that the facts of this case satisfied the requirement of the immovable property of the Appellant. Respondent averred to the fact that she had levied execution and what was attached in the execution did not satisfy the judgment debt which fact was not challenged in any way by the Appellant. He urged the Court to resolve issue four against the Appellant and dismiss the appeal for lacking in merit.
A judgment creditor is entitled to the fruit of his judgment and the Court ought not to allow the antics of the judgment debtor to deny the judgment/creditor such. Appellant has not shown why the application should not be granted. It is obvious that what was attached in the execution did not satisfy the judgment debt. This is an appropriate situation for the Court to grant leave to Claimant/Judgment creditor as prayed. The judgment/creditor is the 1st Respondent on appeal. Issue four is hereby resolved against the Appellant.

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Finally, the appeal is devoid of merit and it is hereby dismissed accordingly. The ruling of the lower Court in Suit No. HCT/309/97 delivered on the 14th of June, 2012 is hereby affirmed. N30,000.00 cost is hereby awarded against the Appellant and in favour of the 1st Respondent.
MONICA BOLNA’AN DONGBAN-MENSEM,J.C.A.: Filing an appeal simplicita does not amount to an order of stay by this Court. A reply brief is a medium of reply to issues raised by the respondent in the Respondent’s brief. It is not a medium for raising fresh issues. The reason being that it would inflict injustice by way of denial of fairing hearing to the Respondent who has no right of reply to the reply brief of the Appellant. Where an Appellant feels sufficiently aggrieved by
an issue which he failed to raise in his Notice of Appeal, he should seek the order of the Court to amend his Notice and ground of Appeal by the addition of more grounds of appeal.
In this appeal, the Appellant failed to do so proceed. He cannot turn a reply brief into another brief which is not supported by grounds of appeal filed before the Court. That procedure would go contrary to the provisions of Section 36 of the 1999 Constitution of the Federal Republic of Nigeria as amended.
This appeal is without merit and is hereby dismissed.
CHINWE EUGENIA IYIZOBA, J.C.A.: I read before now the judgment just delivered by my learned brother, MODUPE FASANMI JCA. She has dealt exhaustively with the issues in the appeal. I agree with his reasoning and conclusions. I abide by all the consequential orders of my learned brother in the Judgment

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 as 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. Frank Okiye and the appellant herein – Hon. Blessing Agbebaku 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. Okiye 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, Hon. Zakawanu Garuba and Hon. Blessing Agbebaku by 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. Johnson Oguma.
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. Frank Okiye were jointly charged for conspiracy and unlawful assault of fellow legislatures during the earlier mentioned fracas.
On 20/07/2010 following the inability of the Respondent to serve the Appellant with criminal summons in Charge No B/533M/2010, the Respondent filed and moved a motion ex parte for substituted Service. The court sat that same day. The Appellant and other accused persons were absent from court. The Appellant and other accused persons were represented by Imadegbelo (SAN) and eight other lawyers. The Respondent’s 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 the jurisdiction of the Court and requested to be served the criminal summons on behalf of the Appellants. The learned Trial Judge struck out the Respondent’s Ex Parte motion for substituted service and ordered service on the accused persons’ counsel.

The Appellant’s Counsel on the 21/09/2010 filed a motion challenging the jurisdiction of the court to hear the matter in Charge B/93C/2010.
On the 25/10/2010, the Respondent’s counsel filed a counter affidavit to the Appellant’s Preliminary objection to jurisdiction. The 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 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/93C/2010.
On the 26/07/2011, almost a year after his counsel accepted service, the Appellant was absent but was represented by E. Imade Esq. and two other lawyers. The Respondent informed the court that the Appellant had been served but was absent. The Respondent then orally applied to court for the issuance of a bench warrant against the appellant. The Appellant’s counsel then informed the court that they had not been able to serve the Appellant. The trial Court thereafter issued the bench warrant against the Appellant.
Disgruntled, the appellant filed a notice of appeal on the 1/8/2011. The records were transmitted on 30/10/2011 and deemed filed on 15/5/2013. Appellant filed 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 her 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

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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.
Senior Learned counsel posited that the above provisions of the law 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 is no endorsement or affidavit of service in the record of the court below and that there is no provision for service of criminal summons on counsel. Learned 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 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 appellant or her counsel before the issuance of bench warrant as the only notice to show cause existing was dated 3/07/2011. He submitted that since the notice to show cause dated 3/07/2011 was addressed to be served on appellant’s counsel, and the counsel could not reach the accused between 3/6/11 to 26/7/11 was not served on anybody, there was no foundation for the issuance of bench warrant and that the issuance of the bench warrant was afflicted with a fundamental vice. He 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 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 Appellant raises the presumption that counsel had the authority of the Appellant to conduct the 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 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 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 Appellant’s counsel before the trial court were done with his knowledge and consent. Counsel argued strenously 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. 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 Appellant suddenly woke up to reality, changed her counsel, and in the bid to continue shielding herself from justice filed this appeal. Counsel argued that any party who wishes to challenge non-compliance 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).

…………………….C…………………….

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 A.G., 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 A.G., Anambra v. Okeke (Supra).
Learned Counsel for the respondent also 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 Appellant never showed up in Court.
Counsel submitted that although the Appellant’s counsel accepted service for B/533M/2010 which was different from B/93C/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/93C/2010. Counsel further argued forcefully that a glean at the two records of appeal show that the motion ex parte for substituted service was in respect of B/93C/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 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 court summons 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 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).

In reply to the Respondent’s brief, Senior Learned Counsel for the Appellant pointed out that the argument on appearance of 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 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 appellant.
Senior learned Counsel pointed out that the contention of the Respondent’s counsel that notice to show cause is not an originating process and was not issued is 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. 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 Appellant or his counsel. 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

…………………….D…………………….

VS
HON. ZAKAWANU GARUBA)
HON. FRANK OKIY )…………ACCUSED/RESPONDENT
HON. BLESSINGS AGBEBAKU )
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 filed 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 accused persons.

Court

The summons shall and are hereby served on Mr. Imadegbelo S.A.N for and on behalf of the accused persons.
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/9C/2010

BETWEEN:

THE STATE … COMPLAINANT
VS
HON. BLESSING AGBEBAKU… 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 aacused.

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…………………….

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 reiterated the view that technical justice is no justice where a party is made aware of proceedings then he cannot complain of lack of service.

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”
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.

…………………….F…………………….

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 Appellant and others on 2nd July 2010 and the respondent went on to effect service.

Upon the abortive attempts at personal service on the Appellant, the Respondent on the 20th July 2010 filed an application for substituted service and moved it that same day.
The Ex Parte application shows that the deponent had exercised due diligence and still had not been able to effect personal service on the Appellant, 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 Respondent was still acting within the confines of the law. However, the Appellant’s counsel, Imadegbelo SAN arrested the Ex Parte application of the Respondent 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 Appellant’s counsel to address the court while the Respondent’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. See 7UP Bottling Company 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 expresses “ex parte” means on one side only; by or for one party; done for, on behalf of or 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 Respondent’s ex parte application and allowed the Appellant’s counsel to receive the process.
The summons intended to be served on the 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 a party related to civil matters. This was a criminal proceeding. I cannot lose sight of the fact that the 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. Adjoto Kabiru.
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 the 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/2010wherein 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

…………………….G…………………….

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/93C/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 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 Charge 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. Inspite 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 to show cause issued thereafter in respect of Charge B/93C/2010 was served on the Appellant. We must remember that in Charge No B/93C/2010, the 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.

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 Appellant. When faced with legal and political gladiators in civil or criminal matters with political flavor, 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.
The Criminal Procedure Law has provided for the correct procedure for service of criminal process on the 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 or service by Court on 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. See Attorney-General of the Federation v. Dr Clement Isong (1986) 1 QLRN 75. 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

…………………….H…………………….

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, after the pre-trial process of investigation, etc, the matter is referred to a High Court Judge who issues an order to show cause – in this case called the notice to show cause and nothing else. For a legislator it constitutes the charge. What this means is that a legislator need not be brought to court before he is charged. The notice to show cause is the charge which he must come to court to respond to and on failure to show up, bench warrant can issue. 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 an originating process required by law to be served in this case the notice to show cause is not served before an Order is made, it is a fundamental defect as a matter of substantive law. 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 originating process on the Appellant. The bench warrant issued in the absence of service of the notice to show cause on the 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.

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. The appeal is allowed accordingly.
The order on Bench warrant issued by C.O. Idahosa, CJ, issued on 26th July, 2011 in Charge No.B/94c/2010 against the appellant is set aside.

The Appellant was the Speaker 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 the appellant. This motion led to a fracas in the house as members attacked each other with weapons such as axes, tear gas and chemicals. The Police was called in and they carried out investigation. Their report was submitted to the Attorney-General of Edo State.

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. Frank Okiye and Hon. Blessing Agbebaku 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. Okiye and Hon. Aigbogun among others.

The Police was called upon and they carried out an investigation. Their report which was dated the 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, Hon. Blessing Agbebaku and the appellant herein by 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. Kabiru Adjoto.

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. Blessing Agbebaku and Hon. Frank Okiye were jointly charged for conspiracy and unlawful assault of fellow legislatures during the earlier mentioned fracas.

On the 19/07/2010, learned silk Imadegbelo (SAN) on behalf of the Appellant filed a motion on notice for an order dismissing the charge No B/94C/2010 against the appellant and challenging the court’s jurisdiction to hear the case.

Following the inability of the Respondent to serve the Appellant, the respondent filed and on 20/7/2010 moved a motion ex parte for substituted Service. The court sat that same day. The Appellant and other accused persons were absent from court. The Appellant and other accused persons were represented by Imadegbelo (SAN) and eight other lawyers. The Respondent’s counsel moved the Ex Parte motion for substituted service. Before the Court could give an order, Mr Imadegbelo (SAN) drew the Court’s attention to his preliminary objection to the jurisdiction of the Court and requested to be served the criminal summons on behalf of the appellant and the other accused persons. The learned Trial Judge struck out the Respondent’s Ex Parte motion for substituted service and ordered service on the Appellant counsel. On the 20/09/2010, the Respondent’s counsel filed a counter affidavit to the Appellant’s preliminary objection to jurisdiction. On the next day which was 21/09/2010, the Appellant’s counsel filed another motion on notice for preliminary objection.

On the 26/07/2011, almost a year after his counsel accepted service, the Appellant was absent but was represented by E. Imade Esq. and two other lawyers. The Respondent informed the court that the Appellant had been served but was absent. The Respondent then orally applied to court for the issuance of a bench warrant against the Appellant. The Appellant’s counsel then informed the court that they had not been able to serve Appellant. The trial Court thereafter issued the bench warrant against the Appellant.

Disgruntled, the Appellant filed a notice of appeal on 1/8/2011. The records were transmitted on 30/10/2011 and deemed filed on 15/5/2013. The Appellant filed a brief of argument on 26/03/2013 and it was deemed filed on 16/04/2013. Respondent filed its brief on 6/05/2013 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?

…………………….B…………………….

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 his 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 Fred Orbih (SAN), senior counsel 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 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 90 of the Criminal Procedure Law. Learned Counsel further relied on Sections 93 and 97 of the Criminal Procedure Law.

Senior Learned counsel posited that the above provisions of the law 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 the record of service. He argued that in the instant case, there is no endorsement or affidavit of service in the record of the court below. Learned Appellant’s counsel further 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 and void and of no effect whatsoever.

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 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 Appellant raises the presumption that Senior counsel had the authority of the Appellant to conduct the case which included making necessary compromises. Counsel cited Hon Bassey Etim v Hon Emmanuel Bassey Obot &Ors (2010) 12 NWLR Pt. 1004 Pg. 108 at 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 Appellant is bound by the warrant which was issued about a year after service of summons. Counsel stated further that rather than challenge the action of his own counsel, the Appellant adopted it by filing fresh preliminary objection on 20/09/2010. Learned counsel for the Respondent submitted that all applications made by the 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. Counsel posited that the court needed no further proof of service on the Appellant apart from the consistent appearance of the 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 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

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or waiver of such irregularity. Learned Respondent’s counsel further argued that a certificate of service and an affidavit of service are not the only acceptable means of proof of service. Counsel cited AG Anambra v. Okeke (2002) CLR 5(b); (2002) 10 MJSC.

Counsel finally 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.

In reply to the Respondent’s brief, Appellant’s counsel pointed out that the argument on appearance of Appellant’s counsel as contained on page 4 of the Respondent’s brief of argument is 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 the Appellant failing to appear.

Counsel further argued that even though the summons in Charge No B/94C/2010 was served on Appellant’s counsel, Ighodalo Imadegbelo SAN, it was not the process that he volunteered to receive on behalf of the Appellant on 20/07/2010. Learned counsel insisted that the process which the Appellant’s counsel volunteered to receive was the summons in B/533M/2010. Counsel cited Citizens Intl. Bank v. SCOA (Nig) Ltd (2006) Pt. 1011 Pg. 239-469, Bello v. UBN (1992) 6 NWLR Pt. 246 Pg. 206.

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

VS

HON. ZAKAWANU GARUBA
HON. FRANK OKIYE
HON. BLESSINGS AGBEBAKU ACCUSED/RESPONDENTS

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

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The summons shall and are hereby served on Mr Imadegbelo S.A.N for and on behalf of the accused persons.

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/94C/2010

BETWEEN:

THE STATE COMPLAINANT

VS

HON. ZAKAWANU GARUBA 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. SeeShahimi 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 reiterated the view that technical justice is no justice where a party is made aware of proceedings then he cannot complain of lack of service.

In the instant case which involves summons and order to show cause in a criminal matter, the service of summons on an

…………………….E…………………….

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”
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 his 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 Appellant and others on 2nd July 2010 and the prosecution went on to effect service.

Upon the abortive attempts at personal service on the Appellant, the Respondent on the 20th July 2010 filed an application for substituted service and moved it that same day. The Ex Parte application was supported by a 7-page affidavit deposed to by one Richard Irenhen which stated in Paragraph 5 that:
“(a) All efforts to serve the Accused/Respondent by direct, personal service with the said notice to show cause proved abortive.
(b) Pasting this notice and other court process on the last known address of the place of abode will enable the accused/respondent receive the notice so that they can appear before the court to defend himself?”

The Ex Parte application shows that the deponent had exercised due diligence and still had not been able to effect personal service on the Appellant, 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 Appellant’s counsel, Imadegbelo SAN arrested the Ex Parte application of the Respondent 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. This fact both parties are ad idem on.

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 Appellant’s counsel to address the court while the Respondent’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. See 7UP Bottling Company v. Abiola & Sons (1995) 3 NWLR Pt. 383 Pg. 275.

In N.A.A v. Orjiakor (1998) 6 NWLR Pt. 553 Pg. 253 at 269, the Court held as follows:
“The Latin expresses “ex parte” means on one side only; by or for one party; done for, on behalf of or 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

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(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 Respondent’s ex parte application and allowed the Appellant’s counsel to receive the process.

The summons intended to be served on the 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 a party related to civil matters. This was a criminal proceeding. I cannot lose sight of the fact that the 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. Adjoto Kabiru.

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/94C/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 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 charge 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. Inspite 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 to show cause issued thereafter in respect of Charge B/94C/2010 was served on the Appellant. We must remember that in Charge No B/94C/2010, the 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.

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 Appellant. When faced with legal and political gladiators in civil or criminal matters with political flavor, 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

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return of service. The procedure adopted was too casual to be later enforced by the learned trial judge.

The Criminal Procedure Law has provided for the correct procedure for service of criminal process on the 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 or service by Court on 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 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 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, after the pre-trial process of investigation, etc, the matter is referred to a High Court Judge who issues an order to show cause – in this case called the notice to show cause and nothing else. For a legislator it constitutes the charge. What this means is that a legislator need not be brought to court before he is charged. The notice to show cause is the charge which he must come to court to respond to and on failure to show up, bench warrant can issue. 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 an originating process required by law to be served in this case the notice to show cause is not served before an Order is made, it is a fundamental defect as a matter of substantive law. 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 originating process on the Appellant. The bench warrant issued in the absence of service of the notice to show cause on the 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/94C/2010 is hereby set aside.
Appeal allowed.

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. The appeal is allowed accordingly.
The order on Bench warrant issued by C.O. Idahosa, CJ, issued on 26/07/2011 in Charge No.B/94c/2010 against the appellant is set aside.
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Order of Hon.

…………………….H…………………….

Justice Idahosa of the Edo State High Court made on 26/06/11 wherein the learned trial Judge ordered a bench warrant to be issued for the arrest and detention of the appellant in Charge No B/94C/2010. The following are the facts which led to this appeal:

The Appellant was the Speaker 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 the appellant. This motion led to a fracas in the house as members attacked each other with weapons such as axes, tear gas and chemicals. The Police was called in and they carried out investigation. Their report was submitted to the Attorney-General of Edo State.

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. Frank Okiye and Hon. Blessing Agbebaku 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. Okiye and Hon. Aigbogun among others.

The Police was called upon and they carried out an investigation. Their report which was dated the 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, Hon. Blessing Agbebaku and the appellant herein by 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. Kabiru Adjoto.

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. Blessing Agbebaku and Hon. Frank Okiye were jointly charged for conspiracy and unlawful assault of fellow legislatures during the earlier mentioned fracas.

On the 19/07/2010, learned silk Imadegbelo (SAN) on behalf of the Appellant filed a motion on notice for an order dismissing the charge No B/94C/2010 against the appellant and challenging the court’s jurisdiction to hear the case.

Following the inability of the Respondent to serve the Appellant, the respondent filed and on 20/7/2010 moved a motion ex parte for substituted Service. The court sat that same day. The Appellant and other accused persons were absent from court. The Appellant and other accused persons were represented by Imadegbelo (SAN) and eight other lawyers. The Respondent’s counsel moved the Ex Parte motion for substituted service. Before the Court could give an order, Mr Imadegbelo (SAN) drew the Court’s attention to his preliminary objection to the jurisdiction of the Court and requested to be served the criminal summons on behalf of the appellant and the other accused persons. The learned Trial Judge struck out the Respondent’s Ex Parte motion for substituted service and ordered service on the Appellant counsel. On the 20/09/2010, the Respondent’s counsel filed a counter affidavit to the Appellant’s preliminary objection to jurisdiction. On the next day which was 21/09/2010, the Appellant’s counsel filed another motion on notice for preliminary objection.

On the 26/07/2011, almost a year after his counsel accepted service, the Appellant was absent but was represented by E. Imade Esq. and two other lawyers. The Respondent informed the court that the Appellant had been served but was absent. The Respondent then orally applied to court for the issuance of a bench warrant against the Appellant. The Appellant’s counsel then informed the court that they had not been able to serve Appellant. The trial Court thereafter issued the bench warrant against the Appellant.

Disgruntled, the Appellant filed a notice of appeal on 1/8/2011. The records were transmitted on 30/10/2011 and deemed filed on 15/5/2013. The Appellant filed a brief of argument on 26/03/2013 and it was deemed filed on 16/04/2013. Respondent filed its brief on 6/05/2013 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.

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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 his 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 Fred Orbih (SAN), senior counsel 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 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 90 of the Criminal Procedure Law. Learned Counsel further relied on Sections 93 and 97 of the Criminal Procedure Law.

Senior Learned counsel posited that the above provisions of the law 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 the record of service. He argued that in the instant case, there is no endorsement or affidavit of service in the record of the court below. Learned Appellant’s counsel further 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 and void and of no effect whatsoever.

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 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 Appellant raises the presumption that Senior counsel had the authority of the Appellant to conduct the case which included making necessary compromises. Counsel cited Hon Bassey Etim v Hon Emmanuel Bassey Obot &Ors (2010) 12 NWLR Pt. 1004 Pg. 108 at 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 Appellant is bound by the warrant which was issued about a year after service of summons. Counsel stated further that rather than challenge the action of his own counsel, the Appellant adopted it by filing fresh preliminary objection on 20/09/2010. Learned counsel for the Respondent submitted that all applications made by the 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. Counsel posited that the court needed no further proof of service on the Appellant apart from the consistent appearance of the 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 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. Learned Respondent’s counsel further argued that a certificate of service and an affidavit of service are not the only acceptable means of proof of service. Counsel cited AG Anambra v. Okeke (2002) CLR 5(b); (2002) 10 MJSC.

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Counsel finally 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.

In reply to the Respondent’s brief, Appellant’s counsel pointed out that the argument on appearance of Appellant’s counsel as contained on page 4 of the Respondent’s brief of argument is 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 the Appellant failing to appear.

Counsel further argued that even though the summons in Charge No B/94C/2010 was served on Appellant’s counsel, Ighodalo Imadegbelo SAN, it was not the process that he volunteered to receive on behalf of the Appellant on 20/07/2010. Learned counsel insisted that the process which the Appellant’s counsel volunteered to receive was the summons in B/533M/2010. Counsel cited Citizens Intl. Bank v. SCOA (Nig) Ltd (2006) Pt. 1011 Pg. 239-469, Bello v. UBN (1992) 6 NWLR Pt. 246 Pg. 206.

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

VS

HON. ZAKAWANU GARUBA
HON. FRANK OKIYE
HON. BLESSINGS AGBEBAKU ACCUSED/RESPONDENTS

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.

Now that the summons for Hon. Z. Garuba and Hon. Blessing Agbebaku have been served, the motion ex parte loses its

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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/94C/2010

BETWEEN:

THE STATE COMPLAINANT

VS

HON. ZAKAWANU GARUBA 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. SeeShahimi 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 reiterated the view that technical justice is no justice where a party is made aware of proceedings then he cannot complain of lack of service.

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

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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”
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 his 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 Appellant and others on 2nd July 2010 and the prosecution went on to effect service.

Upon the abortive attempts at personal service on the Appellant, the Respondent on the 20th July 2010 filed an application for substituted service and moved it that same day. The Ex Parte application was supported by a 7-page affidavit deposed to by one Richard Irenhen which stated in Paragraph 5 that:
“(a) All efforts to serve the Accused/Respondent by direct, personal service with the said notice to show cause proved abortive.
(b) Pasting this notice and other court process on the last known address of the place of abode will enable the accused/respondent receive the notice so that they can appear before the court to defend himself?”

The Ex Parte application shows that the deponent had exercised due diligence and still had not been able to effect personal service on the Appellant, 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 Appellant’s counsel, Imadegbelo SAN arrested the Ex Parte application of the Respondent 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. This fact both parties are ad idem on.

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 Appellant’s counsel to address the court while the Respondent’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. See 7UP Bottling Company v. Abiola & Sons (1995) 3 NWLR Pt. 383 Pg. 275.

In N.A.A v. Orjiakor (1998) 6 NWLR Pt. 553 Pg. 253 at 269, the Court held as follows:
“The Latin expresses “ex parte” means on one side only; by or for one party; done for, on behalf of or 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

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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 Respondent’s ex parte application and allowed the Appellant’s counsel to receive the process.

The summons intended to be served on the 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 a party related to civil matters. This was a criminal proceeding. I cannot lose sight of the fact that the 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. Adjoto Kabiru.

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/94C/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 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 charge 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. Inspite 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 to show cause issued thereafter in respect of Charge B/94C/2010 was served on the Appellant. We must remember that in Charge No B/94C/2010, the 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.

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 Appellant. When faced with legal and political gladiators in civil or criminal matters with political flavor, 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.

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The Criminal Procedure Law has provided for the correct procedure for service of criminal process on the 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 or service by Court on 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 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 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, after the pre-trial process of investigation, etc, the matter is referred to a High Court Judge who issues an order to show cause – in this case called the notice to show cause and nothing else. For a legislator it constitutes the charge. What this means is that a legislator need not be brought to court before he is charged. The notice to show cause is the charge which he must come to court to respond to and on failure to show up, bench warrant can issue. 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 an originating process required by law to be served in this case the notice to show cause is not served before an Order is made, it is a fundamental defect as a matter of substantive law. 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 originating process on the Appellant. The bench warrant issued in the absence of service of the notice to show cause on the 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/94C/2010 is hereby set aside.
Appeal allowed.

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. The appeal is allowed accordingly.
The order on Bench warrant issued by C.O. Idahosa, CJ, issued on 26/07/2011 in Charge No.B/94c/2010 against the appellant is set aside.