Peter Ayodele Fayose V. The State (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UWANI MUSA ABBA AJI, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the interlocutory decision of Hon. Justice C.I. Akintayo of the High Court of Justice, Ekiti State, sitting in Ado-Ekiti delivered on the 12th day of December, 2007 issuing conditional warrant of arrest against the Appellant.

The facts leading to this appeal are, pursuant to the consent granted by the Acting Chief Judge of Ekitit State, Hon Justice Modupe Fasanmi, (as he then was) on the 7th day of July, 2007, the prosecution i.e. the Respondent filed an information against the Appellant and one Olayisade Akintade on the 15th November, 2007 for conspiracy to murder one Tunde Omojola on the 25th May, 2005, pursuant to section 340(2) of the Criminal Procedure Act as applicable in Ekiti State.

When the Respondent could not serve the Appellant, it filed a motion ex-parte on the 4th December, 2007 for his arrest. That motion was withdrawn and struck out. The Appellant and the 2nd accused were absent on the adjourned date of 10th of December, 2007. The Respondent then applied formerly for the issuances of a warrant of arrest against the two accused persons to enable the prosecution bring them to court.

The Appellant filed a Notice of Preliminary Objection against the application for the issuance of warrant of arrest against the Appellant.

The Respondent also filed an affidavit of Complaint on Oath. The two applications, the preliminary objection and the oral application for the issuance of warrant of arrest were taken together. The lower court in its ruling of 12th December, 2007 granted the oral application of the Prosecution on the condition that the warrant of arrest shall be issued against the 1st accused person, the Appellant herein, Dr. Peter Ayodele Fayose upon the vacation of the order of the Federal High Court, Lagos.

The Appellant dissatisfied with the said order, and by the leave of this court granted on the 25th June , 2008, appealed to this court vide a Notice of Appeal dated and filed on the 7th July, 2008, upon six (6) grounds of appeal.

The grounds of appeal without their particulars are hereby reproduced.

1. The learned trial judge erred in law when he summarily granted an order of conditional warrant of arrest against the 1st accused person when the application praying for same has not been concluded.
2. The learned trial judge erred in law when he failed to comply with the conditions precedent as laid down in sections 22, 23, 24, 25, 26, and 27 of the Criminal Procedure Act before granting an order for issuance of warrant of arrest against the Appellant.
3. The learned trial judge erred in law in assuming jurisdiction over the charge when his learned brother Hon. Justice Daramola is presiding over the same matter with the same facts and consequences.
4. The learned trial judge erred in law when he erroneously held that
5. The learned trial judge erred in law when he considered extraneous factors in arriving at his decision.
6. The ruling is unwarranted; unreasonable and cannot be supported by evidence.

Parties filed and exchanged briefs of argument. In the Appellant’s brief of argument settled by Ahmed Tafa, Esq., learned counsel formulated two (2) issues for the determination of the appeal to wit:-

(1) Whether the trial court did not err in law in assuming jurisdiction and granting an order of conditional warrant of arrest against the Appellant in the circumstances of this case.

(2) Whether the ruling of the trial court is not liable to be set aside for being unwarranted and unsupportable in the circumstances of this case.

The Respondent’s brief of argument was settled by Rotimi Jacobs, Esq. In the brief, learned counsel argued that there is only one issue that calls for determination in this appeal and that is:-

Whether the order of conditional warrant of arrest made by the lower court on the 12th December, 2007 is invalid and liable to be set aside by this Hon. Court.

At the hearing of the appeal on the 18th October, 2010, K.K. Eleja, Esq, adopted and relied on the Appellant’s brief of argument filed on the 6th/7/2009 but deemed properly filed on the 17th/5/2010 and urged the court to allow the appeal. Gbenga Daramola, D.D.P.P. Ekiti State adopted and relied on the Respondent’s brief of argument dated and filed on the 24th/5/2010 and urged the court to dismiss the appeal.