COLLINS v. STATE (2020)

COLLINS v. STATE

(2020)LCN/14781(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Monday, November 30, 2020

CA/B/195C/2017

RATIO

SERVICE: FUNDAMENTAL NATURE OF SERVICE OF COURT PROCESSES

In law, service of originating processes, as well as all other Court processes meant for service, is fundamental. It is what confers the right on the Court to assume jurisdiction over either an Accused person or a Defendant, as the case may be, who has been duly served. However, it must be pointed out at once that where an Originating process such as a Charge or Information was duly issued and initiated in accordance with due process of law, it is thus competent. Thus, the failure to serve it or even serving it improperly would not vitiate the competence of the originating processes. At any rate, where an Originating process had been duly issued but only the service of same on the Accused person or the Defendant turns out to be improper and invalid, it is only the defective service and not the Originating process that should be adversely affected and rendered invalid and not the Originating process which would remain valid. PER GEORGEWILL, J.C.A.
PROCESS: IMPORTANCE OF SERVICE OF COURT PROCESSES

But first, in law, service of Court processes, more particularly an Originating process, is fundamental and an indispensable condition precedent to the assumption of jurisdiction by the Court. Thus, failure to effect service of Court process as required by law is not only improper but also goes to the root of the matter and robs the Court of its jurisdiction. Any such improper service is a nullity and therefore, liable to be set aside as a nullity. In United Bank for Africa V. Okonkwo (2004) 5 NWLR (Pt. 867) 445, the Supreme Court held inter alia as follows:
“It is settled that service of originating process is sine qua non to the exercise of adjudicative powers by a Court. Undoubtedly, it is the law that proper service of originating process empowers a Court to exercise its adjudicative powers over a Defendant. It is equally true that non service of originating process renders the entire proceedings a nullity.”
Again in Okonji V. Onwusanya & Ors (2014) LPELR 22191(CA), this Court had profoundly reiterated the sound position of the law on the fundamental issue of service of Court processes inter alia thus:
“The law is well settled beyond controversy, that where the rules of Court provides that writs of summons, originating summons be personally served on the defendant, failure to do so, is not a mere irregularity but a fundamental vice which goes to the root of the action and any judgment or order obtained thereon, is a nullity and ought to be set aside. This is because, service of an originating process on a defendant is what brings him to the Court and then confers jurisdiction on the Court to adjudicate over the case.”
My lords, so fundamental and crucial is the requirement of the law on service of Originating processes that a failure to do so would, without exceptions, render the proceedings and decision of the Court a nullity for want of jurisdiction. In law therefore, a failure to properly serve an Originating process is a fundamental vice and deprives the Court of the necessary competence and jurisdiction to hear and determine the matter or Charge against the party who has not been properly served. Thus, such failure is never a mere irregularity that can be waived. See Kalu Mark & Anor. V. Gabriel Eke (2004) 5 NWLR (Pt. 865) 54, where Musdapher JSC, lucidly re-stated this position of the law inter alia thus:
“When an order is made or judgment is entered against a defendant, who claimed not to have been served with the originating process, such an order or judgment becomes a nullity if the defendants prove non-service of the originating process. It is a nullity because the service of the originating process is a condition sine qua non to the exercise of any jurisdiction on the defendant. If there is no service, the fundamental rule of natural justice audi alterem partem will be breached.”
See also Auto Import Export V. Adebayo (2000) 18 NWLR (Pt. 799) 554; Mohammed Kida V. A.D. Ogunmola (2006) Vol. 8 MJSC 1. PER GEORGEWILL, J.C.A.
SERVICE: PROOF OF SERVICE OF COURT PROCESSES

It is the law that an affidavit of service, which is ordinarily a prima facie proof of service, in the absence of any credible evidence to the contrary, amounts to proof of service. See Afribank {Nig.} Plc. V. Yelwa {2011} 12 NWLR (Part 1261) 286 @ p. 305, where this succinct position of the law was reiterated inter alia thus:
“The rules of Court enjoin the Court to rely on the proof of Service filed by the bailiff of the Court in all matters of service of Court processes, unless there is credible evidence, strong enough and adduced by the party that contests the truth of such service to defeat such faith or belief in the bailiff.”
However, it must be pointed out at once that an affidavit of service, being merely a prima facie proof of service and nothing more, where there is credible evidence of non service before the Court, it will certainly rebut the presumption of service conferred on an affidavit of service as proof of service. See GMBH V. Tunji Dusumu Industries Ltd (2010) 11 NWLR (Pt. 1206) 589, where Chukwuma-Eneh JSC, had explained in simple terms the meaning of the phrase “prima facie” inter alia thus:
“Simply put the phrase ‘Prima Facie’ means as per evidence which if accepted appears to be sufficient to establish a fact or sustain a judgment unless rebutted by acceptable evidence to the contrary. In other word, it is not conclusive. It is evidence (as distinct from proof) that is, on first appearance.”
See also Kalu Mark & Anor Vs. Gabriel Eke (2004) 5 NWLR (Pt. 865) 54 @ p. 79. PER GEORGEWILL, J.C.A.

Before Our Lordships:

Moore Aseimo Abraham Adumein Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Between

ESELEMO OKUBOKEYEI COLLINS APPELANT(S)

And

THE STATE RESPONDENT(S)

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment):This is an Appeal against the Order of Bench Warrant contained in the Ruling of the High Court of Edo State, Coram: R. Irele – Ifijeh J., in Charge No. B/CD/67C/2015: The State V. Eselemo Okubokeyei Collins., delivered on 20/7/2016, wherein an Order of Bench Warrant was issued for the arrest of the Appellant, who was the Accused person in the Charge pending before the Court below for being absent from the Court.

The Appellant was pissed with the Order of Bench Warrant made against him as contained in the said ruling of the Court below and had appealed against it vide his Notice of Appeal filed on 29/7/2016 on three grounds of appeal at pages 73 – 79 of the Record of Appeal. The Record of Appeal was duly transmitted to this Court on 28/4/2017. The Appellant’s brief was filed on 12/6/2017. The Respondent’s brief was filed on 16/7/2019 but deemed as properly filed on 17/9/2019. The Appellant’s reply brief was filed on 23/1/2020 but deemed as properly filed on 16/11/2020.

At the hearing of this appeal on 16/11/2020, V. E. Sodje Esq., learned counsel for the Appellant

adopted the Appellant’s brief and reply brief as his arguments in support of the appeal and urged the Court to allow the appeal and set aside the Order of Bench Warrant issued against the Appellant by the Court below as contained in the ruling appealed against. On his part, F. O. Usiobaifo Esq., Senior State Counsel, Ministry of Justice, Edo State for the Respondent adopted the Respondent’s brief as his argument in opposition to the appeal and urged the Court to dismiss the Appeal for lacking in merit.

BRIEF STATEMENT OF FACTS
Sometimes in August 2011, the Appellant was petitioned by one Edward Ighodaro over a gentleman agreement in respect of a property situate at No. 73, Oko-Ogba Road, Benin city in that the Complainant had a lease agreement with the Appellant for six years for the rent of N1,200,000.00 yearly payable in two years in advance. However, it was alleged that the Appellant paid the sum of N1,200,000.00 for a year rent vide a post-dated UBA Plc., Cheque which was dishonored upon presentation after maturity. The Complainant further alleged that the Appellant erected illegal structures on his property without his consent,

while threatening his life. The Appellant was arrested, cautioned and he volunteered his statement wherein he admitted with some explanations of issuing the post – dated UBA Plc., Cheque to the Complainant but denied the allegation of threat to life made against him. Subsequently, the matter was charged to the Court below by way of Information filed against the Appellant by the Respondent.

By a Charge filed by the Respondent against the Appellant at the Court below, the Appellant is charged on a two count under Section 1(1)(b)(I) the Dishonored Cheque (Offences) Act Cap. D11, Laws of the Federation 2004 with the offence of issuance of a Cheque in favor of the first Complainant in the sum of N1,200,000.00 but which Cheque was dishonored upon its presentation for payment by the Complainant. The Appellant was also charged with the offence of issuance of a Cheque in the sum of N400,000.00 to a second Complainant, one Mr. Okechukwu Onwuchekwe which was also dishonored upon its presentation for payment. The matter has seemingly traverse the length and breadth of the Court having at one time or the other come up before Justices Imoedemhe, Ovbiagele, Ifijeh,

Imadegbelo and Acha, all of the Court below. See pages 1-31 of the Record of Appeal.

On 20/7/2016, the Appellant was absent from the Court below, though represented by counsel and the Court below had, pursuant to its earlier warning on 15/6/2016 that if the Appellant was not present in Court on 20/7/2016 an Order of Bench Warrant would be issued against him, proceeded to issue an Order of Bench Warrant for the arrest of the Appellant and adjourned the Charge No. B/DC/67C/2015 to 28/9/2016 for his plea, hence this appeal against the said Order of Bench Warrant. See pages 32 – 34 of the Record of Appeal.

ISSUES FOR DETERMINATION
In the Appellant’s brief, three issues were distilled as arising for determination from the three grounds of appeal, namely:
1. Whether the Court below was right when it made an Order for the issuance of Bench Warrant against the Appellant when the information in the case had not yet been served on him?
2. Whether the Court below was right to Order for the issuance of Bench Warrant against the Appellant when it had earlier ordered personal service of the Information on the Appellant and there has

been no report or proof of personal service of the Information on the Appellant?
3. Whether the Court below was right in making an Order for the issuance of Bench Warrant against the Appellant without hearing from him or considering his position?

In the Respondent’s brief, one issue was distilled as arising for determination in this appeal, namely:
“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?”

I have given due considerations to the facts and circumstances of this appeal as in the printed record. I have also calmly reviewed the submissions of counsel in their respective briefs in the light of the circumstances leading to the Order of Bench Warrant issued against the Appellant by the Court below on 20/7/2016 and it appears to me that the sole issue as distilled in the Respondent’s brief is the only proper issue arising for determination in this appeal, a consideration of which, in my view, would invariably involve a due consideration of all the three issues as distilled in the Appellant’s brief.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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SOLE ISSUE
“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?”

APPELLANT’S COUNSEL SUBMISSIONS
On his issue one, learned Counsel for the Appellant had submitted that Court below clearly erred when it made an Order on 20/7/2016 for the issuance of Bench Warrant against the Appellant when the Charge filed against him by the Respondent had not yet been served on him and contended that in law service of an originating process is a prerequisite for the assumption of jurisdiction by a Court and urged the Court to hold that it is the service of the Charge against the Appellant on him that would confer jurisdiction on the Court below to hear the case or make any Order therein against the Appellant.

It was also submitted that in the absence of service of the Charge on the Appellant, if the Court below goes ahead to make any Order against the Appellant it would clearly amounted to a nullity and contended that the Order of Bench Warrant made against the Appellant on 20/7/2016 when the Appellant had not yet been served with

the Charge filed against him by the Respondent and when he was under no obligation to appear before the Court below to take his plea was unconstitutional, null and void and urged the Court to so hold and to allow the appeal and set aside the said Order of Bench Warrant made by the Court below against the Appellant for being a nullity. Counsel relied on Pavex (Nig.) Ltd. V. IBWA Ltd. (2000) 77 LRCN 1211 @ p. 1246; Timi Timi &Ors V. Chief Amabebe & Ors (1953) 14 WACA 374 @ p. 377; Egbagbe V. Ishaku (2006) All FWLR (Pt. 331) 1277 @ p. 1296.

On his issue two, learned Counsel for the Appellant had submitted that it was wrong of the Court below to have ordered the issuance of a Bench Warrant against the Appellant on 20/7/2016 after it had on earlier on 15/6/2016 directed personal service of the Charge on the Appellant and contended that since as at 15/6/2016 the Respondent admitted that they had not served the Appellant with the Charge and on 20/7/2016 there was still no service of the Charge on the Appellant, the Court below fell into grave error when without any proof of service of the Charge either personally or by substituted means on the Appellant it

proceeded to issue an Order of Bench Warrant against the Appellant on 20/7/2016 and urged the Court to hold that it failed to give fair hearing to the Appellant and also failed to exercise its discretion judicially and judiciously and to allow the appeal and set aside the said Order of Bench Warrant, being clearly a case of wrongful exercise of discretion. Counsel relied on Oyegun V. Nzeribe (2011) Vol. 195 LRCN 184 @ p. 194.

On his issue three, learned Counsel for the Appellant had submitted that the Court below did not afford the Appellant fair hearing on 20/7/2016 when it made the Order of Bench Warrant against him and contended that as at that date it was clear that the Appellant had not yet been served with the Charge and the Court below was so informed by Appellant’s Counsel but the Court below merely took sides with the Respondent’s Counsel that the Appellant was avoiding service of the Charge and proceeded to issue the Order of Bench Warrant against him and urged the Court to hold that the Court below did not act impartially but unfairly and thereby denied the Appellant of his right to fair hearing and to allow the appeal and set aside the

Order of Bench Warrant made against the Appellant in breach of his constitutional right to fair hearing. Counsel relied on Dr. (Mrs.) Marian Nnaemeka Comfort Ali & Anor V. Senator Patrick Enebeli Osakwe & Ors (2008) Vol. 10 SCLR (Pt. 10) 167 @ p. 200.

It was also submitted that as at 20/7/2016, the Appellant had a pending application challenging the jurisdiction of the Court below on the ground of incompetence of the Charge for lack of service of same on the Appellant and contended that in law the issue of the jurisdiction being a threshold issue must be resolved first before any step is taken by a Court in a matter and urged the Court to hold that the failure of the Court below to determine the pending application challenging its jurisdiction before making the Order of Bench Warrant against the Appellant constituted a gross denial of fair hearing to the Appellant and to allow the appeal and set aside the said Order of Bench warrant.

RESPONDENT’S COUNSEL SUBMISSIONS
On his sole issue, learned Senior State Counsel for the Respondent had submitted that in the circumstances leading to this appeal as shown in the record of appeal the

Court below was right in issuing the Order of Bench Warrant against the Appellant and contended that the said Order of Bench Warrant was made lawfully and does not amount to a nullity in that in law a Bench Warrant is normally issued on an Accused person who fails to appear in Court or to comply with the terms of the Court with the aim of deterring such person from violating Orders of the Court as well as to punish offenders for failing to appear before the Court as required by the Court.

It was also submitted that in law a Bench Warrant is a discretionary power of a Court invoked to secure the attendance in Court of an unwilling Accused person and the record of appeal shows a clear pattern of evasiveness on the part of the Appellant to appear before the Court below to take his plea and stand his trial due to his several attempts to frustrate hearing of the case by his petitioning every Judge that was assigned to hear the case and contended that had the Appellant had no knowledge of the Charge pending against him before the Court below he would not have been in position to have retained the services of various Counsel to represent him in the Court below

while persistently avoiding service and refusing to appear before the Court below to take his plea and urged the Court to hold that in the circumstances the issuance of the Order of Bench Warrant against the Appellant by the Court below was proper and thus valid and to dismiss the appeal and affirm the issuance of the said Order of Bench Warrant. Counsel relied on Okiye V. The State (2014) LPELR -22194 (CA); Ikomi V. The State (1986) 3 NWLR 340.

It was further submitted that the failure to serve the Charge on the Appellant was because the Appellant was nowhere to be found and was clearly evading service coupled with the lack of any opportunity for the Respondent to effect service of the Charge on the Appellant without any fixed address provided by his Counsel and contended that assuming but without conceding that there was non service of the Charge on the Appellant it would only rob the Court of procedural jurisdiction which the Appellant had waived by his conduct and urged the Court to hold in the circumstances the Order of Bench Warrant made against the Appellant by the Court below is not a nullity and to dismiss the appeal for lacking in merit.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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APPELLANT’S COUNSEL REPLY SUBMISSIONS
In his reply, learned counsel for the Appellant had reiterated his earlier submissions and further submitted that the issue of service is so fundamental to the process of adjudication that it cannot be waived by an Accused person in a criminal trial and contended that a Court cannot take any action against an Accused person in his absence since without service there cannot be any submission to the jurisdiction of the Court and urged the Court to hold that without the service of the Charge on the Appellant the Court below lacked the jurisdiction to either try or issue any Order against the Appellant unless and until he was duly served with the Charge and to allow the appeal and set aside the said Order of Bench Warrant, it being a nullity. Counsel relied on Kalu Mark & Anor V. Gabriel Eke (2004) Vol. 117 LRCN 3861 @ p. 3884.

It was also submitted that neither the presence of Appellant’s Counsel in the Court below on 20/7/2016 nor the alleged difficulty in serving the Charge on the Appellant amount to the presumption that the Appellant had waived his right to be served with the Charge and

contended that the Court below was wrong to issue an Order of Bench Warrant for the arrest of the Appellant who had not been served with the Charge and has never been present before the Court below prior to 20/7/2017 when the Order of Bench Warrant was made against him by the Court below and to allow the appeal.

RESOLUTION OF THE SOLE ISSUE
My lords the only crucial issue in this appeal is the place of proper service of a Charge or Information, which is the Originating process in a Criminal Trial, on an Accused person, such as the Appellant by the Respondent, the Prosecution before the Court below.
In law, service of originating processes, as well as all other Court processes meant for service, is fundamental. It is what confers the right on the Court to assume jurisdiction over either an Accused person or a Defendant, as the case may be, who has been duly served. However, it must be pointed out at once that where an Originating process such as a Charge or Information was duly issued and initiated in accordance with due process of law, it is thus competent. Thus, the failure to serve it or even serving it improperly would not vitiate the

competence of the originating processes. At any rate, where an Originating process had been duly issued but only the service of same on the Accused person or the Defendant turns out to be improper and invalid, it is only the defective service and not the Originating process that should be adversely affected and rendered invalid and not the Originating process which would remain valid.
Now, going by the facts in the Record of Appeal that the Charge filed by the Respondent against the Appellant before the Court below is clearly valid, then what are the facts on which the parties are relying upon for their divergent contentions in this appeal as to the circumstances leading to the issuance of the Order of Bench Warrant against the Appellant by the Court below on 20/7/2016?
On 15/6/2016, the Charge No: B/CD/67C/2015 came up for plea before the Court below presided over by Irele – Ifijeh J., but the Appellant, though represented by his counsel, one V. E. Sodje Esq., was absent in Court and his counsel informed the Court that Appellant was absent in Court because he has not been served with the Charge. Whereupon, the State Counsel, one Miss T. O. Ugbodaga,

representing the Respondent promised the Court below of making effort to ensure the service of the Charge on the Appellant. However, subsequent events in the proceedings on the same date led to the withdrawal of the Counsel for the Appellant from further representing the Appellant and the Court below duly discharged the said counsel as prayed. The matter was then adjourned to 20/7/2016 for plea despite the application for the immediate issuance of a Bench Warrant against the Appellant by the State Counsel but with a warning by the Court below that should the Appellant be absent in Court on the next adjourned date an Order of Bench Warrant shall be issued against him for his arrest and presentation before the Court below for him to take his plea and stand his trial for the criminal allegations made against him by the Respondent. See page 32 of the Record of Appeal.
On 20/7/2016, which was the next adjourned date fixed by the Court below for the appearance of the Appellant to take his plea to signal the commencement of the criminal trial against him, the Appellant was yet again absent from the Court below but was represented by another Counsel, one O.

Omoruhimwen Esq., who again informed the Court below that the Appellant has not been served with the Charge but is absent in Court due to his ill -health. Whereupon, the State Counsel, one Mrs. S. E. Okojie, representing the Respondent urged the Court below to discountenance the submissions of the Counsel for the Appellant, whom it was submitted was aware of the case against him before the Court below but was merely avoiding service to enable him pursue his Petitions to the NJC against the several judges of the Court below. See pages 33 – 34 of the Record of Appeal
Upon hearing both Counsel, the Court below had proceeded to deliver a terse bench ruling in which it issued an Order of Bench Warrant for the arrest and production of the Appellant before the Court below on 28/9/2016 for him to take his plea and for the criminal trial against him to properly commence, stating inter alia thus:
“It is the order of Court that B/W is ordered for the arrest of the Accused and his surety to show cause, case is adjourn till the 28/9/16 for plea.” See page 34 of the Record of Appeal.
My lords, while the submissions on law between the parties

appears to be divergent, the facts of the non service of the Charge, which is the Originating Process in the Criminal Trial against the Appellant by the Respondent, are very straight forward. The parties are ad idem that there has not been any form of service of the Charge, whether by means of personal service or through substituted service on the Appellant, an Accused person before the Court below, as required of the Respondent by law. The divergent point seems to be the Respondent’s perceived belligerent attitude of the Appellant in avoiding service of the Charge on him and refusing to attend the Court below for his plea and commencement of his Criminal trial in earnest.
So, was the Court below, apparently seemingly feeling frustrated as well as irritated by the perceived attitude of the Appellant, though duly represented by Counsel but not personally appearing before the Court below to take his plea for the commencement of his Criminal trial, right when on 20/7/2016 it issued an Order of Bench Warrant for the arrest and production of the Appellant before the Court below to take his plea and to stand his Criminal trial?

I shall answer this crucial question on which the success or failure of this appeal depends anon.
But first, in law, service of Court processes, more particularly an Originating process, is fundamental and an indispensable condition precedent to the assumption of jurisdiction by the Court. Thus, failure to effect service of Court process as required by law is not only improper but also goes to the root of the matter and robs the Court of its jurisdiction. Any such improper service is a nullity and therefore, liable to be set aside as a nullity. In United Bank for Africa V. Okonkwo (2004) 5 NWLR (Pt. 867) 445, the Supreme Court held inter alia as follows:
“It is settled that service of originating process is sine qua non to the exercise of adjudicative powers by a Court. Undoubtedly, it is the law that proper service of originating process empowers a Court to exercise its adjudicative powers over a Defendant. It is equally true that non service of originating process renders the entire proceedings a nullity.”
Again in Okonji V. Onwusanya & Ors (2014) LPELR 22191(CA), this Court had profoundly reiterated the sound position of the law on the

fundamental issue of service of Court processes inter alia thus:
“The law is well settled beyond controversy, that where the rules of Court provides that writs of summons, originating summons be personally served on the defendant, failure to do so, is not a mere irregularity but a fundamental vice which goes to the root of the action and any judgment or order obtained thereon, is a nullity and ought to be set aside. This is because, service of an originating process on a defendant is what brings him to the Court and then confers jurisdiction on the Court to adjudicate over the case.”
My lords, so fundamental and crucial is the requirement of the law on service of Originating processes that a failure to do so would, without exceptions, render the proceedings and decision of the Court a nullity for want of jurisdiction. In law therefore, a failure to properly serve an Originating process is a fundamental vice and deprives the Court of the necessary competence and jurisdiction to hear and determine the matter or Charge against the party who has not been properly served. Thus, such failure is never a mere irregularity that can be waived. See

Kalu Mark & Anor. V. Gabriel Eke (2004) 5 NWLR (Pt. 865) 54, where Musdapher JSC, lucidly re-stated this position of the law inter alia thus:
“When an order is made or judgment is entered against a defendant, who claimed not to have been served with the originating process, such an order or judgment becomes a nullity if the defendants prove non-service of the originating process. It is a nullity because the service of the originating process is a condition sine qua non to the exercise of any jurisdiction on the defendant. If there is no service, the fundamental rule of natural justice audi alterem partem will be breached.”
See also Auto Import Export V. Adebayo (2000) 18 NWLR (Pt. 799) 554; Mohammed Kida V. A.D. Ogunmola (2006) Vol. 8 MJSC 1.
Now, in the instant appeal, the Appellant’s residential address being 73 Airport Road Benin City, as well as his business position as Managing Director of Mathidas Place Nig. Limited were very well known to the Police which had earlier arrested, cautioned and obtained his voluntary statement upon the Petition written against him by the nominal complainants in this case. The Appellant

was therefore not of unknown address or whose where about is unknown. See page 17 of the Record of Appeal.
Yet, there is neither any proof of service of the Charge duly endorsed by the Appellant acknowledging receipt of same thereon nor is there any affidavit of service of the Charge on the Appellant. It is the law that an affidavit of service, which is ordinarily a prima facie proof of service, in the absence of any credible evidence to the contrary, amounts to proof of service. See Afribank {Nig.} Plc. V. Yelwa {2011} 12 NWLR (Part 1261) 286 @ p. 305, where this succinct position of the law was reiterated inter alia thus:
“The rules of Court enjoin the Court to rely on the proof of Service filed by the bailiff of the Court in all matters of service of Court processes, unless there is credible evidence, strong enough and adduced by the party that contests the truth of such service to defeat such faith or belief in the bailiff.”
However, it must be pointed out at once that an affidavit of service, being merely a prima facie proof of service and nothing more, where there is credible evidence of non service before the Court, it

will certainly rebut the presumption of service conferred on an affidavit of service as proof of service. See GMBH V. Tunji Dusumu Industries Ltd (2010) 11 NWLR (Pt. 1206) 589, where Chukwuma-Eneh JSC, had explained in simple terms the meaning of the phrase “prima facie” inter alia thus:
“Simply put the phrase ‘Prima Facie’ means as per evidence which if accepted appears to be sufficient to establish a fact or sustain a judgment unless rebutted by acceptable evidence to the contrary. In other word, it is not conclusive. It is evidence (as distinct from proof) that is, on first appearance.”
See also Kalu Mark & Anor Vs. Gabriel Eke (2004) 5 NWLR (Pt. 865) 54 @ p. 79.
Curiously, in all the feeling of frustration of both the Court below and the Respondent on the perceived belligerent attitude of the Appellant in not appearing before the Court below to stand his criminal trial and the strong notion that he was evading personal service of the Information on him, yet neither the Respondent made any application for an Order of substituted service of the Information by whatever permissible lawful means nor the

Court below suo motu made any Order of substitute means for the service of the Information on the Appellant. Indeed, this is the basic minimum condition precedent required of and expected in law of both the Respondent and the Court below, which regrettably, both had failed to do before the Order of Bench Warrant was made against the Appellant by the Court below on 20/7/2016!
So, was the Court below right when on 20/7/2016 it issued the Order of Bench Warrant for the arrest of the Appellant even without or before ascertaining if he had been served with the Information either by personal served or by means of substituted service as required by law? I certainly do not think so and therefore, the simple answer to this all important question in this appeal is a resounding no! See Adeigbe V. Kusimo (1965) NMLR 284, where the pivotal place of proper service of Court processes was put in its proper context inter alia thus:
“Where service of a process is legally required, the failure to serve it in accordance with the law is a fundamental flaw and a person affected by any order but who was not served with the process is entitled ex debito justitiae to

have the order set aside as a nullity.”
See also Total E & P Nigeria Ltd. V. Emmanuel & Ors. (2014) LPELR – 22679(CA); Augustine Bassey Ene V. Chief Asuquo Asikpo (2009) LPELR 8723; Sken Consult Nig. Ltd. V. Ukey (1981) 1 SC 4 (Reprint); Uchendu V. Chief Eyo Ogboni (1999)5 NWLR (Pt. 603) 337; Ali V. Albishir (2008) 3 NWLR (Pt. 1073) 94 @ p. 138.
The power to issue Bench Warrant is neither absolute nor automatic but must be dictated and guided by the facts and circumstances of each case. Thus, service of the Information on an Accused person is sine qua non and a condition precedent to the issuance of Bench Warrant by a Court of law in a Criminal Trial. Service of the Information is therefore fundamental and a condition precedent to the exercise of the criminal jurisdiction of the Court below. Thus, once as in the instant appeal there has been no service of the Information on the Appellant in a Criminal trial, of which the Respondent even admitted the fact of non service of the Information on the Appellant as at 20/7/2016 when the Order of Bench Warrant was issued against the Appellant, the Court below ought to have made haste slowly by

following the due process of law in a matter the effect of which is the deprivation of the liberty of the Appellant even if temporary by ensuring that the Information was duly served on the Appellant.
Now, the haste has merely ended up prolonging and protracting the timely hearing and conclusion of the Criminal trial of the Appellant since 20/7/2016 to date, 30/11/2020, when a little patience to get things done properly and according to law would have saved all the time spent on this appeal.
As I bring this judgment to a close, I should perhaps pause to observe that the essence of service of the Charge on the Appellant, being an Accused person, is so that he should know not only the offence for which he is being charged but also the date for his arraignment before the Court below to enable him attend the Court below to take his plea and stand for his trial. Thus, in a criminal trial, the presence of a Counsel for an Accused person, who has not been served with the Charge or Information as required by law, is of no consequences and would not justify the issuance of Bench Warrant against such an Accused person who was yet to be served with the

Charge or Information against him by the State. There is therefore, no presumption of waiver of the right of an Accused person to be served with the Charge or Information against him by the mere presence of his Counsel in Court on the day of his proposed arraignment.
It should be noted, and most pertinently too, by trial Courts such as the Court below that no matter how belligerent the attitude of an Accused person may be and no matter how frustrating, and indeed it may sometimes be truly so frustrating and vexatious as in the instant case, to the Court such an attitude may be, particularly more so where such absentee Accused person is being represented by his Counsel in the Court, the law as regarding and requiring service of the Charge or Information, being the Originating Processes in criminal trials on the Accused person, must be complied with before any consequential steps as allowed by law can be invoked and or taken against an Accused person, such as the Appellant. The requirement for service of the Charge or Information on an Accused person is not just for the mere fun of it!
Thus, as Judges sitting in the hallowed ‘temple of

justice’, we must strive to be patient within the bounds of the law to ensure that all conditions precedent to the exercise of our enormous powers are fulfilled before we proceed to invoke those enormous powers no matter how distasteful or vexatious the conduct of an Accused person or Defendant may be. I therefore, find great merit in the contention of the Appellant that there was indeed no service at all on the Appellant before the Order of Bench Warrant for his arrest was made by the Court below on 20/7/2016. I hold that the Order of Bench Warrant made against the Appellant by the Court below on 20/7/2016 was one made without any jurisdictional competence and thus null and void. Thus, it is liable to be set aside without much ado! Indeed, such a null order is one to be treated as if it was never made. See Pavex (Nig.) Ltd. V. IBWA Ltd. (2000)77 LRCN 1211 @ p. 1246. See also Timi Timi & Ors. V. Chief Amabebe & Ors (1953) 14 WACA 374 @ p. 377; Egbagbe V. Ishaku (2006) All FWLR (Pt. 331) 1277 @ p. 1296.
My lords, the decision of the Court below to issue an Order of Bench Warrant against the Appellant on 20/7/2016 in the proved circumstances of

this case even before he was duly served with the Charge filed against him by the Respondent was utterly perverse and therefore, cannot but be set aside. See Obajimi V. Adediji (2008) 3 NWLR (Pt. 1075) 1. See also Sogbamu V. Odunaiya (2013) All FWLR (Pt. 700) 1247.
It is in my finding clearly an injudicious use of the power of discretion by the Court below, which cannot be allowed to stand but must ex – debito justitia be set aside. In law, all forms and manner of discretion must be exercised judicially and judiciously as dictated by the facts and circumstances of the case and never whimsically or merely out of the need to teach a party a hard lesson not supported by the facts and circumstances of the case. This is clearly a case of wrongful exercise of discretion. See Oyegun V. Nzeribe (2011) Vol. 195 LRCN 184 @ p. 194.
I am aware that the Appellant also raised the issue of lack of fair hearing against the Court below for none hearing of his application for bail and challenge of the jurisdiction of the Court below before the Bench Warrant was issued against him on 20/7/2016. However, on the facts and circumstances of this appeal, and having

carefully considered the submissions of counsel I do not see how the issue of lack of fair hearing arises from the Order of Bench Warrant issued against the Appellant while his application for bail and or challenge to the jurisdiction of the Court below was still pending.
Now, had the Charge been duly served on the Appellant, the Court below reserves the plenitude of power and jurisdiction to ensure and enforce the appearance of the Appellant before the Court below either before or after the hearing of his application for bail and or challenge to its jurisdiction and such an exercise would not had in any way or manner constituted or amounted to a breach of the right to fair hearing of the Appellant. I find that there was not an iota of any breach of the right to fair hearing of the Appellant by the Court below in its, though now ascertained wrongful, exercise of its discretion to issue an Order of Bench Warrant against the Appellant in his Criminal trial.
In the light of all I have been laboring to say above, perhaps in so many words, I am of the view, and I so hold, that the lack of service of the Charge or Information, which is the Originating

process in a Criminal trial, on the Appellant either personally or by substituted service as required by law was fatal to the premature decision of the Court below on 20/7/2016 to issue an Order of Bench Warrant against and for the arrest of the Appellant, who at that time was yet to be served with the Charge as required of the Respondent by law. The Court below was thus in grave error when it proceeded on 20/7/2016 without any iota of jurisdictional competence to issue an Order of Bench Warrant against the Appellant.
In the result, the sole issue for determination is hereby resolved in favor of the Appellant against the Respondent and I hold that the Order of Bench Warrant issued by the Court below against the Appellant on 20/7/2016 without any prior service of the Information on the Appellant, either by personal service or substituted service as required by law, is null and void and of no effect whatsoever and therefore, liable to be set aside.

In the circumstances therefore, having resolved the sole issue for determination in this appeal in favor of the Appellant against the Respondent, I hold that the appeal has merit and ought to be allowed.

Accordingly, it is hereby allowed.

Consequently, it is hereby ordered as follows:
1. The Order Of Bench Warrant against the Appellant made by the Court below, Coram: R. Irele – lfijeh J., in Charge No. B/CD/67C/2015: The State V. Eselemo Okubokeyei Collins on 20/7/2016 being null and void is hereby set aside and the said Order Of Warrant is hereby discharged.
2. The Charge No: B/CD/67C/2015: The State V. Eselemo Okubokeyei Collinsis hereby remitted to the Court for service of the Charge or Information, if not yet effected at the date of this judgment on the Appellant by the Respondent, to be effected on the Appellant by the Respondent and for the Charge or Information, if it has not yet been reassigned to another Judge, to be reassigned by the Chief Judge of Edo State to another Judge or the Court below for hearing de- novo.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had preview of the judgment just delivered by my learned brother, Biobele Abraham Georgewill, JCA. I agree with the decision of my learned brother.

GABRIEL OMONIYI KOLAWOLE, J.C.A.: My learned brother, Biobele Abraham Georgewill, JCA had graciously obliged me with a draft

of the lead judgment in the instant appeal in which, having exhaustively perhaps, painstakingly dealt with the sole issue set down for determination by the Respondent, found the appeal meritorious and consequently, set aside the Order of Bench Warrant issued by the lower Court in Charge No. B/CD/67C/2015: The State v. Eselemo Okubokeyei against the Appellant on 20/7/2016.

I agree with the analysis of the sole issue which birthed the conclusion reached in the lead judgment, and I just need to reiterate by way of emphasis, that the issuance of an order of Bench Warrant is not in law, an acceptable or recognized substitute for a fundamental pre condition to effect service of criminal summons or Information on an evading or fugitive defendant because, it is the event of a proper service of the Charge or Criminal Summons as the originating process that invests the Court with the requisite jurisdiction to exercise its legitimate powers to take necessary decisions concerning the Information or Charge filed against the Defendant indicted.
Secondly, the coercive and probably the disciplinary powers of the Court as a superior Court of record which is

exercisable by the issuance of Order of Bench Warrant can only be invoked and be properly exercised only after the Defendant, the presence of who the Court is well seised of after due service of the Charge or Information on him.

I agree with the decision reached by which the appeal was upheld, and with the ancillary order made that the case file be re-assigned by the Chief Judge of Edo State to another judge of the High Court to be heard expeditiously. I only need to add, perhaps to clarify that the order made in the lead judgment, that the Criminal Charge be re assigned to another judge to be heard de novo, was not made to cast any doubt on the competence or integrity of the trial judge hitherto seised with the proceedings, but was made in order to remove any form of clouds of a legitimate doubt that the Appellant may not be afforded a fair trial or hearing before the same judge who, having regard to the facts on the record, was literally pushed as a last resort to issue the order for Bench Warrant to compel the attendance of the Appellant as a Defendant in Court who was perceived by the lower Court (because, he retained counsel to challenge the

Information and to apply for his bail when he has not been formally arraigned before the lower Court) as evading service of the criminal charge or Information on him.

I agree that the appeal succeeds as adjudged in the lead judgment of my learned law lord, Biobele Abraham Georgewill, JCA.

Appearances:

E. Sodje Esq. For Appellant(s)

O. Usiobaifo Esq., Senior State Counsel, Ministry of Justice, Edo State For Respondent(s)