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CaseLaw

Akeredolu V. Abraham (2018) CLR 3(i) (SC)

Judgement delivered on the 23rd of March, 2018

Brief

  • Stare decisis
  • Raising issue suo motu and Looking into its records
  • Raising Issue Suo Motu
  • Substituted service
  • Service of process
  • Technicalities
  • Inferences
  • Service of process on party of aspirant
  • Come to the knowledge of the person to be served
  • Section 240 of the Penal Code
  • Section 246 of the Penal Code
  • Section 18(1) of the Interpretation Act 1990
  • Section 87(1) of the Electoral Act 2010
  • Section 87(4)(b) of the Electoral Act 2010
  • Section 87(7) of the Electoral Act 2010
  • Order 6 Rule 5(b) of the Federal High Court (Civil Procedure) Rules, 2009
  • Order 2 Rule 1(9) of the Federal High Court (Civil Procedure) Rules
  • Order 6 Rule 31 of the Federal High Court (Civil Procedure) Rule 2009

Facts

This is an appeal against the judgment of the Court of Appeal Abuja Division, delivered on 17th July, 2017 wherein the lower Court dismissed the appeal of the Appellant against the ruling of the Federal High Court Abuja, delivered on 16th December, 2016. The Federal High Court had in its ruling dismissed the appellant's objection challenging the service of the originating summons and other processes in this case.

The salient facts giving birth to this appeal as garnered from the record of appeal are that the Appellant herein had emerged the winner of the primary election of the 2nd Respondent, conducted on the 3rd day of September, 2016 in Ondo State to elect the candidate of the 2nd Respondent for the election to the office of Governor of Ondo State slated for the 26th of November, 2016.

Dissatisfied with the outcome of the primary election, the 1st Respondent by way of an Originating Summons and its accompanying processes filed on the 7th of October 2016, challenged the validity of the said Ondo State Governorship Primary Election of the 2nd Respondent while seeking several reliefs.

The 1st Respondent on the 7th of October, 2016, also filed a Motion on Notice for interlocutory injunction, a Motion Exparte for interim injunction seeking to restrain the 4th Respondent from recognizing the Appellant as the Governorship Candidate of the 2nd Respondent in the Ondo State Governorship slated for 26th November, 2016, pending the determination of the suit, as well as a Motion on Notice seeking to abridge the time within which the Defendants in the suit may enter appearance and file their respective processes from the thirty (30) days allowed under the Rules of the Trial Court to a shorter period. See pages 3 - 22 and 49 - 90 of the Record).

In constraint of time, the 1st Respondent on the 11th of October, 2016, filed a Motion Exparte seeking the leave of the Trial Court to serve the Originating processes and other processes filed in the suit on the 2nd and 3rd Defendants (the Appellant and 3rd Respondent in this appeal) by substituted means through the National Secretariat of the 2nd Respondent, i.e. the All Progressives Congress, at 40 Blantyre Street, Wuse 11, Abuja, FCT. The accompanying 18 paragraphs affidavit was deposed to by one Joseph Omoba Esq., a legal practitioner in the Law Firm of Prof. Yemi Akinseye-George SAN, who at the time were the solicitors to the 1st Respondent.

At paragraphs 10 - 17, the deponent stated thus:

  • 10
    By virtue of the 4th defendant/Respondent's Election Guidelines, 2016 for the conduct of the Ondo State Governorship Election, 2016, the Governorship election has been fixed for 26th November 2016.
  • 11
    That the order of this honourable Court is needed in order to serve the 2nd and 3rd Defendants by substituted means that is through the National Secretariat of the All Progressives Congress, at 40 Blantyre Street, Wuse 11, Abuja, FCT for the matter to be heard expeditiously.
  • 12
    That the 2nd and 3rd defendants are the Governorship candidate of the 1st Defendant for the Ondo State November election and the chairman of the 1st Defendant respectively.
  • 13
    That based on the above position occupied by the 2nd and 3rd Defendants, personal service of the Court processes in this case on them will be very difficult owing to the presence of heavy security around them at every occasion.
  • 14
    That further to the above personal service of the Court processes on the 2nd and 3rd Defendants in this suit will be impossible due to the fact that they are always moving from one location to the other campaigning for the forth coming Governorship election in Ondo State.
  • 15
    That if the matter is not heard expeditiously the essence of this suit will be defeated.
  • 16
    That by serving the originating processes and all other accompanying processes through the 1st Defendant National Secretariat, it will get to the knowledge of the 2nd and 3rd Defendants.
  • 17
    That the 2nd and 3rd Defendants will not be prejudiced by the grant of this application as it will be in the interest of justice to serve the Court processes on them through the All Progressives Congress, National Secretariat, 40 Blantyre Street Wuse II, Abuja, FCT, Abuja.

By an Order of the Trial Court made on the 17th of October 2016, the Exparte application seeking the leave of the Trial Court to serve the Originating processes and other processes filed in the suit on the 2nd and 3rd Defendants (the Appellant and 3rd Respondent in this appeal) by substituted means through the National Secretariat of the 2nd Respondent, i.e. the All Progressives Congress, at 40 Blantyre Street, Wuse 11, Abuja, FCT, was granted. (See pages 233 and 234 of the Record).

Consequent upon the above order for substituted service made by the Trial Court, and the service of the processes on the Appellant and the 3rd Respondent via substituted means, the Appellant entered a conditional appearance and on the 1st of November 2016, he filed a Motion on Notice seeking for an Order:

  • 1
    Setting aside the purported service of the applicant (sic) the originating summons the motion on notice for interlocutory injunction, motion on notice for abridgment of time filed in this suit by the plaintiff/respondent, and all other motions and orders that may be served on the applicant.
  • 2
    Setting aside the Order for substituted service made by the Court on the 17th October 2016.
  • 3
    Such other orders.

The grounds upon which the application was brought, are as follows:

  • i
    The purported service an 18th October, 2016 of the Originating Summons, the motion on notice for the interlocutory injunction and motion on notice for abridgment of time filed in this suit by the plaintiff/respondent on the 2nd defendant/applicant at No. 40 Blantyre Street, Wuse 11, Abuja is invalid, ineffectual and null and void.
  • ii
    The 2nd defendant is ordinarily resident in Owo, Ondo State, outside the jurisdiction of this Court.
  • iii
    The Court has no jurisdiction to order substituted service within its area of jurisdiction in the Federal Capital Territory, Abuja on the 2nd defendant who is resident in Owo, Ondo State and could not have been personally served with the originating process in this suit at the time it was filed in this Court on 7th October, 2016 because he was not within jurisdiction.
  • iv
    Service is a threshold issue and in the absence of a valid service of the originating process, the Court is deprived of jurisdiction to adjudicate in the case.
  • v
    The 2nd defendant has not been validly served with any of the processes filed in this suit.
  • vi
    Having regard to the provision of Order 6 Rule 5(b) of the Federal High Court (Civil Procedure) Rules, 2009 under which the application was made, the prayer in the plaintiff/respondent's motion for substituted service to effect service on the 2nd defendant "through the National Secretariat of the All Progressives Congress" is incompetent.
  • vii
    Any order made or based on an incompetent application is invalid and a nullity and liable to be set aside.

The Appellant's motion on notice was heard by the Trial Court and on the 16th December, 2016, the Trial Court dismissed the application for lack of merit. (See pages 238 - 263 of the Record).

Also dissatisfied with the stance of the learned trial Judge, the appellant lodged an appeal at the Court of Appeal which dismissed the appeal on 17th July, 2017.

Further dissatisfied, the appellant has again, appealed to this Court via Notice of Appeal filed on 14th August, 2017, containing six grounds of appeal out of which four issues have been distilled for the determination of this appeal. The Court of Appeal dismissed the appeal on 17th July 2017.

Further dissatisfied, the appellant has again, appealed to this Court

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