The Court of Appeal in Ibadan, Oyo State, on Tuesday declined to pronounce either Senator Buruji Kashamu or a member of the House of Representatives, Oladipo Adebutu, as the governorship candidate of the Peoples Democratic Party in Ogun State.
But the court set aside the order granted by a Federal High Court in Abeokuta, directing the Independent National Electoral Commission to accept and process the list of Ogun State PDP candidates submitted to it by the Chief Adebayo Dayo-led faction of the party for the 2019 general elections.
The Court of Appeal panel resolved the four issues raised for determination in the appeal in favour of the PDP.
The PDP had dragged the Adebayo Dayo-led faction of the party in Ogun State to the appellate court to challenge the lower court’s judgment which ordered INEC to accept the group’s candidates
The PDP prayed the court to set aside the judgment on the grounds that it was not properly served before judgment was delivered and that the lower court judge was wrong in its judgment.
The Adebayo Dayo-led faction had produced Kashamu as the governorship candidate, while the rival group headed by Sikirulai Ogundele insisted that Adebutu was the candidate of the party.
In a unanimous decision, by the three-member appeal panel headed by Justice J. A. Bada, the court held that the order and all decisions arising from the October 2 ruling by Justice Abubakar Shittu of the Federal High Court, Abeokuta, were a nullity because the PDP and other defendants were not served the court processes culminating in the orders.
Justice H. S. Tsamani, in a lead judgment, said service was a fundamental requirement in any adjudication, stressing that proceedings and order made on a matter where the defendants were not served would remain a nullity.
Emeka Etiaba SAN, who is counsel for the PDP in the appeal, had argued at the hearing of the appeal on Monday that there was no service of processes originating from the decision of the lower court on the appellants whom he said were not given a fair hearing.
But respondents’ counsel, Dr Alex Izinyon, SAN, argued that service was effected and filed an affidavit of service sworn to by a bailiff as part of the proof of service.
The bailiff, Bayo Seinde, had sworn that he dumped the processes in the legal unit of the PDP in Wadata, Abuja, where he said he met some lawyers who, rather than accept the documents, said there was a general strike and refused to accept same.
But Justice Tsamani held that the claim by the bailiff in the affidavit showed clearly that the appellants were not served and agreed with the appellants that they were denied the right to be heard in the matter.
He said, “From the above analysis, I have no doubt that the process was not properly served. It is settled in law that where there is no service or proper service, the claimed service is a nullity and any decision based on that is a nullity. This puts the appellants in a situation where their fundamental human right for fair hearing is breached.”
Consequently, he declared the lower court’s decision a nullity. Both Justices Bada and N. Okoronkwo agreed with Justice H. S. Tsamani who read the lead judgment.
While the panel resolved all issues raised for determination in favour of the appellants, it ordered that the substantive matter be withdrawn from Justice Abubakar Shittu and re-assigned to another Judge by the Chief Judge of the Federal High Court.
Counsel for both claimants to the governorship ticket of the PDP in Ogun State differed in their interpretation of Tuesday’s judgment.
A representative of appellants’ counsel, Matthias Ikyzu, said Kashamu had ceased to be the governorship candidate of the PDP in Ogun.
He said Adebutu, whose name the PDP National Working Committee had earlier submitted to INEC before the order, would be restored by INEC.
But a representative of the respondents’ counsel, Mrs Ifeoma Esom, said Kashamu remained the PDP governorship candidate in the state, arguing that the decision of the Appeal Court did not affect Kashamu’s candidacy.
Adebutu in a statement by his media aide, Dayo Rufai, said there was no victor and no vanquished .
“Today’s judgment at the appeal court is a total victory for all PDP members in the state regardless of groups which existed within the party,” the statement read in part.
But Kashamu, who noted Adebutu had not been declared the PDP governorship candidate in the state, said he would head for the Supreme Court.
Kashamu in a statement by his media aide, Austin Oniyokor, said the PDP did not pray for the declaration of Adebutu as its governorship candidate.