Last Friday, a Federal High Court sitting in Abuja struck out a suit that was instituted by the Peoples Democratic Party (PDP), in which it sought to oust five governors that jumped ship from its fold into the All Progressives Congress (APC). In this report, AMEH EJEKWONYILO captures the frustrations of the presiding judge, Justice Gabriel Kolawole and the legal technicalities which led to the throwing out of the suit
After a year into the filing of legal battle by the PDP against five governors of the APC, the Federal High Court in Abuja has struck out the suit seeking to sack the four governors who defected from the party to the APC.
Justice Kolawole, in a ruling that lasted about two hours last Friday, held that the suit’s originating processes were invalid, on the ground that they were wrongly issued and served on the defendants.
The PDP had last December, sued the governors, including former Adamawa State governor, Murtala Nyako and the Independent National Electoral Commission (INEC), asking the court to declare the defecting governors’ seats vacant, and for INEC to conduct elections for their replacement.
Nyako’s name was removed from the suit shortly after his impeachment. The remaining four are Rotimi Amaechi (Rivers), Aliyu Wamakko (Sokoto), Rabiu Kwankwaso (Kano) and Abdulfatai Ahmed (Kwara).
The party had, upon an order of court, served the originating processes on wrong address, which it claimed was the headquarters of the APC. The service was faulted by the defendants, forcing the court to set it aside.
On June 27, the party again obtained an ex-parte order for substituted service of the originating processes through newspaper publication, which it published on July 3 in Thisday newspapers.
The defendants again, faulted the procedure adopted by the PDP in serving them, arguing among others, that the plaintiff failed to first obtained the leave of the court to serve through substituted means, and that the originating processes were not endorsed as required under the Sheriff and Civil Processes Act (SCPA).
Justice Kolawole’s ruling on Friday was on the applications filed by Ameachi, Kwankwaso and Ahmed. He upheld the governors argument that the originating processes, issued in the Abuja division of the Federal High Court, and meant for service outside jurisdiction ought to be endorsed as required under Section 97 of the SCPA.
He held that the plaintiff acted in violation of the provision of Section 96 of the SCPA as it ought to have applied for and obtained the court’s leave before engaging in substituted service.
The judge rejected the argument by counsel to the PDP, Alex Iziyon (SAN) to the effect that the governors could be served through their new party’s address.
Justice Kolawole held that it was “preposterous, audacious and breathtaking” for the plaintiff to argue that the defendants, sued individually in personal capacity, could be served through the office of the party to which they defected to.
He further held that, having been described as governors of Rivers, Kano and Kwara states, who carry out most of their functions in their states’ capitals, it was wrong to assume, as argued by the plaintiff, that they reside or operate from the APC headquarters in Abuja.
The judge also held that since APC was not a party in the suit, which was meant to sack the governors, it was wrong to provide the APC’s address as the place where the governors could be served.
On the plaintiff’s argument that the defendants had exceeded the seven days limit for them to challenge the order for substituted service, the judge held that the provision of Order 26 Rule 11 of the Federal High Court Civil Procedure Rules does not apply in view of the fact that the order made on June 27 for substituted service was an ex-parte order, which is not covered by the provision.
He consequently declared the originating summons filed by the PDP invalid by virtue of its not being endorsed as required by law.
“This suit is struck out as this originating summons has been declared invalid,” the judge held.
He also extended his findings to cover Wamakko, who he noted, had equally filed similar application.
It would be recalled that the judge had at the last sitting expressed frustration over the delay being experienced in the hearing of the suit filed by the PDP against the five governors who defected from the party.
The judge said he was not happy that no meaningful progress was made in the case filed on December 10 last year.
He noted that by this December, it would be one year after the case was filed and yet parties were still stuck at the preliminary stage, disputing whether or not proper service of processes have been effected.
Kolawole said: “It is unfortunate that almost a year after this case was filed, no progress has been made.” The judge said it was worrisome that the case was being held down by “legal technicalities”. He said he was getting tired about the development.
Justice Kolawole noted that by the nature of the subject of the case, it was only the governors, who would benefit if the case was not decided before May 29, 2015 when their tenure will run out.
The judge was reacting to development, which prevented the hearing of an application by the 3rd defendant (Governor Rotimi Amaechi of Rivers State). Ameachi’s application is challenging the mode of service of the originating processes on him.
The court had adjourned to yesterday for the hearing of Ameachi’s application. But when the case was called, other defendants in the case informed the court that they have equally filed similar applications, challenging the mode of services.
They sought an adjournment to enable the plaintiff react to their new application to enable the court hear them together. Although plaintiff’s lawyer, Fabian Ajogwu (SAN) objected to an adjournment and insisted that some of the ready applications should be heard, the judge adjourned to December 18 for the hearing of all pending applications.
Governor Rabiu Kwankwaso of Kano, in his application, had urged the court to set aside the ex-parte order granted the plaintiff on June 17 this years, granting the plaintiff leave to serve processes on the defendants through substituted means.
He also wanted the court to set aside the purported service effected on him through newspaper advertisement published on July 3, 2024.
Kwankwaso argued that since he was sued in person and in official capacity, the plaintiff ought to effect personal service of processes on him.
He faulted the resort to substituted service when he was not within the jurisdiction of the court and had not evaded service.
Hearing of the substantive case had been made impossible since it was filed owing to the plaintiff’s inability to effect acceptable service of processes on the defendants.
