Hon. Zakawanu Garuba V. The State (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the Order of Hon. Justice Idahosa of the Edo State High Court made on 26/06/11 wherein the learned 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.