Controversies arising from the indictment of the All Progressives Congress (APC) governorship candidate, Dr. Kayode Fayemi, by a Judicial Panel of Inquiry set up by Governor Ayo Fayose have yet to abate.
Fayemi, therefore, approached an Ekiti State High Court urging it to set aside its order for substituted service of summons in respect of the inquiry.
It would be recalled that on May 28, Justice Cornelius Akintayo had ruled that Fayemi should be served the court summons by substituted means following the state government’s inability to effect service on the indicted former governor and other state public officers during his tenure.
Fayemi and his Finance Commissioner, Dapo Kolawole, were indicted by the said Judicial Panel of Inquiry that probed the finances of the state between 2010 and 2014.
While Ola Olanipekun (SAN) was counsel for the state in the suit; Chief Rafiu Balogun represented Fayemi and Kolawole.
Balogun had argued that the mode of substituted service through newspaper advertisement was unknown to the Ekiti State Administration of Criminal Justice Law, 2014.
He maintained that the only means of service recognised by the relevant state law is by affixing the summons or other processes at a conspicuous place or premises of the person to be served.
Balogun cited the case of Garba vs State as reported in 2014 AFWLR pt 756 pg 423 @ 444-445, arguing that the Court of Appeal had ruled that the only two means of service in criminal matters are personal service by pasting.
Opposing the application, Olanipekun told the court that he had filed a four-paragraph counter-affidavit dated and filed on June 27, and supported by three exhibits.
Relying on the affidavit and exhibits, Olanipekun, while adopting his written address, urged the court to dismiss the defendants’ application.
He submitted that the motion earlier moved by Balogun was supported by an affidavit deposed to by Kolawole, whom, he said, put his address in paragraph 1 as Igbehinadun Street, Iloro-Ekiti. And in paragraphs 6 and 7 he averred that he resides in Lagos.
He faulted the defendants’ prayer seeking to set aside the order granted by the court on May 28, saying the order was executed on May 31 in the Nigerian Tribune edition of that day, noting that it was late for the court to set aside the order already executed.
Olanipekun described the defendants’ application as misconceived and an abuse of court process, arguing that “once an order is executed, it cannot be set aside.”
Counsel for the prosecution added that s. 6 (6) of the constitution refers to all judicial powers to facilitate delivery of justice, including powers to make orders not provided for in adjectival law.
Reacting to issues raised by Olanipekun, Balogun insisted that there was no contradiction in Kolawole’s averments in paragraphs 1, 6 and 7 on place of residence.
He added that the court can set aside its order if given in error or deceived to issue same, adding that there was no service at all on his clients either in Abuja or Lagos, citing the case of Adekoye and Ors v NSPMC reported in LCER p. 106 (SC) p. 37 paragraphs d-g.
Olanipekun also told the court that he has filed another application seeking to effect further processes on the defendants through their counsel.
Balogun reacted that he would need time to respond to it, reiterating that he was appearing in protest.
Justice Akintayo adjourned hearing in the matter till July 11 for ruling on the applications filed by the parties.