Hon. Justice Nicholas Oweibo of the Federal High Court, Lagos, has quashed a bench warrant issued against a Lebanese, Saab Rafic, who was alleged to have been involved in criminal acts.

The court set aside the warrant on the ground that it was not properly obtained by the prosecution.

The judge had on December 10, 2020, issued an order of arrest against Saab, for his failure to appear before the court over alleged conspiracy, unlawful conversion of the sum of $5, 000 and fraud.

Upon the issuance of the arrest warrant, Saab’s counsel, Mr. Muyiwa Ogungbenro, approached the court to set aside the warrant and an order directing the prosecution to serve the order setting aside the bench warrant on all the agencies, whom it has earlier served the bench warrant.

In response, the prosecution urged the court to dismiss the application, on the ground that the bench warrant issued against a defendant can only be vacated when he is physically present in court in a criminal charge.

Both parties argued and cited various decided cases to support their arguments.

However, Justice Oweibo in his ruling held: “I have considered the reply on points of law in which learned counsel for the applicant made submissions in response to the various contentions of counsel for the respondent.

“There are two things that I should from the onset make clear.

“First is that criminal trials in the Federal High Court are summary trials, so, the formalities relating to trial by information in the State High Courts, particularly section 379 ACJA, do not apply.

“Secondly, on December 10, 2020, the order of the court was that a ‘Warrant of Arrest’ is issued, and not a ‘Bench warrant’. Section 352(1)(a) ACJA provides for the circumstance, when a warrant, called a bench warrant, may be issued for the arrest of a defendant, who has failed to appear in court.

“Now going back to the substance, on the date the court made the order issuing the warrant of arrest, the applicant had not been brought before the court, he was yet to take his plea.

“The warrant was issued on the ground that the applicant is evading coming to court. A person will be deemed evading coming to court if it is shown that he was aware of the date his matter was fixed.

“On July 9, 2020, when this matter was first mentioned, the defendant/applicant was absent. The prosecuting counsel informed the court that the defendant had not been served the charge because he was in Lebanon and there were no International Flights as a result of COVID-19.

“On October 6, 2020, when the matter next came up, the prosecuting counsel informed the court that they have still not been able to serve the applicant.

The IPO was directed to get the surety, but they were yet to contact him. On November 26, the defendant was still not in court and the prosecuting counsel informed the court that the defendant/applicant was being tracked. The matter was adjourned to December 10, 2020.”

The court further said that looking at the above history of the proceedings prior to the making of the order, the contention of the defendant/applicant that he was not aware of the matter being in court cannot be faulted. “One other point I have taken into consideration is that the warrant issued upon the order of the court seemed to have told a lie. It is stated therein that the defendant was bound by recognisance to appear before the court on February 16, 2021, but failed hence the command to arrest. That is to the effect that the warrant was issued for a failure that was yet to occur.

“For the above reasons, I believe that the proper thing to do is to set the warrant of arrest aside. Application is accordingly granted as prayed,” the judge declared.