By Oladele Ogunsola,Ibadan
The hitherto victory of Sen. Buruji Kashamu in the tussle for the Guber ticket of the Peoples Democratic Party (PDP) in Ogun State might have turned opposite as the Ibadan Division of Appeal Court on Tuesday set aside the earlier court judgment that affirmed Kashamu and other candidates in the Adebayo Dayo-led faction of the Ogun State Peoples Democratic Party (PDP) as the party’s flag-bearers of the various offices for contest in 2019 general elections.
Declaring the lower court’s earlier decision a nullity, the members of the Court of Appeal panel in their unanimous decision set aside the lower court’s judgment and ordered it to be reassigned to another judge in the Federal High Court, Abeokuta Division.
It would be recalled that a Federal High Court earlier sitting in Abeokuta, the Ogun State capital had thrown up Kashamu and his factional members as the authentic PDP candidates, a judgement nullified on Tuesday with another order reassigning the case to another judge on the grounds that Justice Abubakar Shittu erred in his judgment.
In the lower court judgement, Justice Shittu
had ordered the Independent National Electoral Commission (INEC) to recognize candidates of the Dayo-led faction having given judgment in the faction’s favour in the case brought before it.
But, the national leadership of the party which were respondents in the case were not, however served the court processes, the basis upon which the appeal case rested.
All the four issues raised for determination in the appeal were resolved in favour of the PDP by the appeal panel headed by Justice A. B. Bada. They averred that the appellants were not properly served in the case at the lower court which breached their rights to fair hearing in the judgement read by Justice H.S. Samani and with which the other two Justices, Bada and N. Okoronkwo concurred.
Following the judgement of the lower court considered sour in taste, the PDP had dragged the Adedayo Bayo-led faction to the appellate court to challenge the lower court judgment which threw up its candidates.
Among the prayers in the appeal requested the court to set aside the judgment of the lower court on the grounds that they were not properly served before judgment was delivered and that the lower court judge was wrong in his judgment.
In granting this prayer, the appeal panel held that there was no proper service on the appellant because an officer of the party not lower than the rank of Secretary should have been served for it to be deemed properly served and neither the party’s National Chairman nor Secretary was served before the judgment was given.
The panel further noted that “an appeal is an invitation to find out if the decision of the lower court was right” and the panel held that all the grounds of appeal were valid.
Elaborating on the importance of service of court processes, the panel said, “proper service is a fundamental requirement in the judicial process and it can not be overlooked or played down as it can affect the entire process”.
Describing it as a sine qua non in the judicial process, the panel pointed out that “service becomes a nullity except it is sufficiently proved. It is an exact thing that must be undertaken with all exactness in the judicial process… It must be clear and unequivocal.
“The bailiff must prove that he has found the exact person the service is meant for, who, in this case, the court stipulated must not be lower in rank than Secretary of the party. But in this instance, the bailiff’s report did not show that the appellants tried to evade service, his report cast serious doubts on proper service expected”, Samani submitted.
Giving the final verdict, the Justice 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 and this puts the appellants in a situation where their fundamental human right for fair hearing is breached”.
Corroborating the read judgement, the two other justices maintained that the main point in the appeal was service of court process which they agreed was not properly served on the appellants.
The counsel to both parties in the case. Matthias Ikyav leading others for the PDP, Ifeoma Esom who led the team for the respondents and counsel to INEC, D. A. Akinyele commended the appeal panel for the judgement.
