The role of the sheriff and bailiff in the service of summons
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This study looks at the role of the sheriff/bailiff in the service of summons. A summons is a legal document issued by the court to be served by a legal actor, who according to the law in Cameroon is the bailiff;
it is served upon the demand of a complainant to a case before the court or issued by the court at its discretion to bring forth a competent witness before the court.
The bailiff who is responsible for the service of a summons must make sure to do this in accordance with the enshrined rules of law under the pain of a nullity in the summons on grounds of being illegal.
However the bailiff can, in the course of effecting the service of a summons make mere mistakes that may not affect the legal proceedings in any way, this would lead to the summons being irregularly served and cannot be a ground for the nullity of a summons, as the court has stated that a legal proceeding should not be affected based on the irregularity of a summons.
The bailiff has a legal duty to effect personal service but he can effect substituted service as a matter of fact and as a matter of law, both strictly on court orders.
He will effect substituted service of summons where it is prescribed by the law as in the case where the person to be served is a member of governmental institutions, he cannot go ahead directly, but he would hand over the summons to the head of the office of the institution who will then hand over the document to the addressee of summons.
The bailiff can also affect substituted service on court orders where he has done everything in his power to ensure that the addressee is being served but the addressee is nowhere to be found.
Just like any other servant of persons, the bailiff is entitled to fees and honorariums governed still by the law, as the legislators have prescribed the tariffs to be used by the bailiffs strictly in the course of this legal duty.
Therefore, limiting the bailiffs to the prescribed tariffs, and so he cannot tax a client below or above these tariffs under the pain of disciplinary measures.
This chapter introduces the topic through the background of the study, the problem statement which is what prompted this research topic, the research question, the justification of this study, the research methodology used, significance, and scope of this study.
Generally speaking, a summons is a legal document that is issued by a court in a Lawsuit, or by a government agency in administrative action.
The document notifies the suspect that he is being sued, or that there is an administrative action against him, as well as the date and time of the first hearing.
A summons also provides the defendant with the opportunity to respond to the case if he wishes to do so.
A summons is also a call by the authority to appear before a court or judicial officer. It is affected or served by a Sheriff or Bailiff who is an overseer or custodian; a legal officer to whom some degree of authority or jurisdiction is given thus his official duties shall only be carried out by only himself and not by a representative for whatever reason.
The Code provides that, a bailiff should not perform his official duties on his family, friends, or anyone he is affiliated with. He is the officer responsible for executing the decisions of a court.
The duty of the bailiff would thus include serving summonses and orders and executing all warrants issued out of the corresponding court.
The Cameroon Criminal Procedure Code in Section 40 defines a Summons as an order requesting a person to appear before a court.
According to the law, when an individual (the “complainant”) files a complaint initiating a lawsuit against another party (the “suspect or accused”), he is legally required to inform that party that he has done so.
The summons provides the date of service of the summons, the full name, affiliation, and place of birth, occupation, address, residence, and where necessary, the address for service on the complainant, the full name, and address of the bailiff.
It shall also state the full name, affiliation and full address of the addressee and his residence and place of it shall also mention in addition that non-appearance or refusal of the defendant to testify or his giving of false evidence is punishable by law.
A summons shall state the facts of the case and provisions of the law under which the defendant is charged.
Summarily the summons will entail the date in which the lawsuit has been filed, identifies all of the parties involved in the lawsuit, and bears the signature and official seal of the court clerk.
Serving a summons and complaint on the defendant, there are certain rules that must be followed.
Witnesses shall be served too with a summons ordering them to appear at a particular time and place to testify, requiring him to tender any documents, books which is he bound by law to produce as evidence.
If a witness who has been served with a subpoena fails to appear before the court without an application or tangible reason, he may be found in contempt of the court which may result in the witness paying a fee or even acquiring a jail term
The court may also issue a warrant for his arrest and ask the sheriff (bailiff) to take him into custody and bring him to the place where his testimony is required. His rights are however to be respected by the judicial authority.
Also, in the case where a defendant who has being warranted or served with a summons or complaint is apprehended in a district other than that in which the prosecution has been instituted, this change might eliminate some of the steps that are at present followed:
the issuance of a warrant in the district where the prosecution is pending; the return of the warrant non-estinventus; the filing of a complaint on the basis of the warrant and its return in the district in which the defendant is found; and the issuance of another warrant in the latter district.
The warrant originally issued will then have efficacy throughout the country and will constitute authority for arresting the defendant wherever found. This change will not modify or affect the rights of the defendant.
As concerns the return of criminal summonses, on or before the return day, the bailiff shall make return thereof to the issuing court.
The clerk shall maintain a list of those summonses returned unsaved which shall include a statement of the efforts made by the person to whom the summonses were delivered for service to serve them. If a summons is mailed and returned, the clerk shall record that fact upon the list.
The officer executing a warrant shall make return thereof to the issuing court. At the request of the prosecutor any unexecuted warrant shall be returned to the issuing court and may be cancelled by that court upon its own motion or upon his own motion made at any time and also while a complaint or an indictment is pending, a summons returned unsaved or a warrant returned unexecuted and not cancelled may be delivered to an authorized person (bailiff) for service or execution
One of the problems faced in criminal prosecutions is the issue of the defendant wanting to set aside an ex parte decree on grounds of the illegality of the summons.
When such a situation comes up, the sheriff bailiff becomes very responsible for this under pain of being liable to a fee; he is the one that serves these criminal summonses so when such a situation comes up, he is liable for any damages the defendant claims to have suffered.
So, this research is focused on the Critical Commentary on the service of criminal summonses; which will focus on the role of sheriff bailiffs, and how they struggle to ensure justice is served, by putting all efforts to ensure that the defendant is being served with his summons and even in cases where the defendant claims not have been served, the bailiff still takes up the responsibility to serve him properly.
The general objective of this research is to critically outline the role of the sheriff/bailiff in the service of summons as the legal official vested with the duty and authority to serve court processes.
The specific objectives of this study include;
- To critically analyze the role of the sheriff/bailiff in criminal prosecution.
- To identify the procedure to be followed by the bailiff based on the law when serving court processes.
- To analyze briefly the bailiff’s responsibility in case of a wrongly served court process.
- To analyze the effects of bad service of summons on criminal actions.
- To analyze briefly the characteristics of the service of a summons that may lead to the nullity of the summons.
- To propose policy recommendations that shall help improve the law in this domain.
The following questions shall serve as a guide in this research;
- What role does the bailiff play in a criminal prosecution?
- What procedures are put in place for the effective service of criminal summons?
- What are the consequences of bad service?
- What policy recommendations will be put forward to improve the practice of the law in this domain?
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