The All Progressives Congress (APC) governorship candidate for the July 14 governorship election in Ekiti State, Kayode Fayemi, has asked the state high court in Ado Ekiti to set aside its order of substituted service in relation to summons on the case of criminal indictment filed against him by the state government.
The judge, Cornelius Akintayo, had on May 28 ordered for substituted service following the inability of the state government to effect service on Mr Fayemi and a former Commissioner of Finance, Dapo Kolawole.
The state government’s white paper, arising from a report of an investigative panel on the tenure of Mr Fayemi as governor, had indicted Messrs Fayemi and Kolawole of fraud while in office between 2010 and 2014.
The white paper had upheld the recommendation of the panel to bar both officials from holding public office for ten years. Mr Fayemi denied any wrongdoing and alleged victimization by the Ayo Fayose-led Ekiti government.
Ola Olanipekun and Fafiu Balogun, both Senior Advocates of Nigeria, appeared for the state government and Messrs Fayemi and Kolawole respectively.
Mr Balogun said he was appearing “in protest” for the duo on grounds that his clients were not properly served before the court gave the last ruling.
He argued that the mode of substituted service through advertisement in the newspaper was unknown to the Ekiti State Administration of Criminal Justice Law 2014 governing criminal matters in the state.
He contended that the only recognised substituted service by the relevant law is by affixing the summons or other processes at conspicuous place or premises of the person to be served.
Mr Balogun cited the case of Garba v State as reported in 2014 AFWLR pt 756 page 423 at 444-445, while arguing that the Court of Appeal had ruled that the only two means of service in criminal matters were personal service and service by pasting.
Opposing the application, Mr Olanipekun told the court that he had filed a four paragraph counter-affidavit dated and filed on June 27 supported by three exhibits.
While adopting a written address, he urged the court to dismiss the defendants’application.
Mr Olanipekun said the motion earlier moved by Mr Balogun was supported by affidavit deposed to by Mr Kolawole, whom he said, put his address in paragraph 1 as Igbehinadun Street, Iloro-Ekiti and also averred in paragraphs 6 and 7 that he resides in Lagos.
He faulted the prayer of the defendants seeking to set aside the order granted by the court 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.
Mr Olanipekun who described the application of the defendants as misconceived and an abuse of court process, noted that “once an order is executed, it cannot be set aside.”
However, it was Mr Balogun’s view that the court could 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.
Justice Akintayo adjourned the case till July 11 for ruling on the applications filed by both parties.