PDP gov: Kashamu, Adebutu disagree as Appeal Court sets aside FHC’s order

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.

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