HON. OLAJIDE ADEDEJI STANLEY v. HON. SAHEED AKINADE & ORS
(2019)LCN/13624(CA)
In The Court of Appeal of Nigeria
On Friday, the 5th day of July, 2019
CA/IB/EPT/OY/HR/02/2019
RATIO
ORIGINATION PROCESSES : IT IS A CONDITION FOR THE EXERCISE OF JURISDICTION BY A COURT OF LAW
The law is settled that service of an Originating Process is a condition precedent to the exercise of jurisdiction by a Court of law. Where there is no service of such process on the affected party the Court ceased with the case lacks the jurisdiction to hear or determine the matter. See KIDA VS. OGUNMOLA (2006) 13 NWLR (PT. 997) PAGE 377 AT 393 ? 394 PARAGRAPS F – A; MBADINUJU VS. EZUKA (1994) 8 NWLR (PT. 364)535 AT 566, and SKEN CONSULT (NIG) LTD. Vs. UKEY (1981) 1 SC 1. PER FOLASADE AYODEJI OJO, J.C.A.
SUBSTITUTED SERVICE: WHETHER PROOF THAT THE DEFENDANT KNEW OF THE SERVICE IS NECESSARY
-In the case of DICKSON VS. OKOI (2003) 16 NWLR (PT. 846) PAGE 397 AT 411 PARAGRAPHS F G, the Court held thus:
Where in accordance with the rules of Court an order for substituted service is made and service is effected in compliance with such order, proof that the Defendant actually had knowledge of the process is unnecessary. PER FOLASADE AYODEJI OJO, J.C.A.
JUSTICES
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
ABUBAKAR MAHMUD TALBA Justice of The Court of Appeal of Nigeria
FOLASADE AYODEJI OJO Justice of The Court of Appeal of Nigeria
Between
HON. OLAJIDE ADEDEJI STANLEY Appellant(s)
AND
1. HON. SAHEED AKINADE
2. ALL PROGRESSIVE CONGRESS
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION
4. PEOPLE DEMOCRATIC PARTY (PDP) Respondent(s)
FOLASADE AYODEJI OJO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the National and State House of Assembly Election Tribunal sitting at Ibadan, Oyo State delivered on the 10th of May, 2019 in Petition No: EPT/OY/HR/08/2019 striking out the reply to the petition filed by the 3rd Respondent who is the Appellant before us.
The Appellant who was the candidate of the 4th Respondent in the election conducted into the House of Representatives for Ibadan Southwest/Northwest Federal Constituency seat on the 23rd of February, 2019 was declared winner and returned as duly elected. The 1st and 2nd Respondents who were aggrieved by the outcome of the election filed a petition against same at the Oyo State House of Assembly Petition Tribunal sitting at Ibadan Oyo State hereinafter referred to as the lower Tribunal.
?It is to be noted that the Petitioner filed a motion exparte on the 18th of March, 2019 at the lower Tribunal seeking to effect service of the Petition and all other processes filed on the Appellant and the 4th Respondent vide substituted means. The said application was granted. The enrolled order
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which is at page 366 of the record reads thus:
?IT IS HEREBY ORDERED THAT:
1. The Petition and all the other processes filed in this Petition shall be served on the 2nd and 3rd Respondents as applied by serving same on the State Chairman, Peoples Democratic Party (PDP), or any of its officials or member of staff of the 2nd Respondent at the 2nd Respondent?s address, the Oyo chapter of Peoples Democratic Party (PDP), State Secretariat, Opposite Late Adedibu House, Oke Ado-Molete Road, Obafemi Awolowo Way, Molete, Ibadan, Oyo State and this shall be good and sufficient service.
2. The application succeeds as above.?
?The Appellant filed his 3rd Respondent?s Reply to the Petition on the 10th of April, 2019 consequent upon which the 1st and 2nd Respondents filed a Petitioners? Reply on the 15th April, 2019. The 1st and 2nd Respondents thereafter filed a Motion on Notice on the 2nd of May, 2019 wherein they pray the Tribunal to strike out the 3rd Respondent?s Reply to Petition filed on the 10th of April, 2019. The Appellant as 3rd Respondent who was opposed to the application filed a Counter Affidavit.
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By a ruling delivered on the 10th of May, 2019, the lower Tribunal granted the application, struck out the 3rd Respondent?s Reply to the Petition filed on the 10th of April, 2019 on the ground that it was incompetent having been filed outside the twenty-one days provided for in paragraph 10(2) of the First Schedule to the Electoral Act, 2010 (as amended). The ruling is at pages 798 ? 803 of the record.
Aggrieved by the ruling, the Appellant filed a Notice of Appeal against same on the 14th of May, 2019. The Notice of Appeal contains seven Grounds of Appeal. The grounds shun of their particulars are:
1. The Honourable Tribunal erred in law when it held that there is evidence to show that the order of substituted service was complied with and both the 2nd and 3rd Respondents were served through the State Secretary of the 2nd Respondent, one Hon. Wasiu Adeleke on 20/03/2019.
2. The Honourable Tribunal erred in law when it held as follows:
The affidavit of service of the Petition filed by the Assistant Secretary of the Tribunal who effected service of the petition filed by the Assistant Secretary of the Tribunal who
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effected the service, Mr. Ismail Suleiman Abdullah shows clearly that the 2nd and 3rd Respondents were both served with the petition on 20/03/2019 through the State Secretary of the 2nd Respondent as ordered by the Tribunal.?
3. The Honourable Tribunal erred in law when it held that the tribunal doubts that the Tribunal bailiff would effect service for the 2nd Respondent on 20/03/2019 and refused to serve the 3rd Respondent when both of them were to be served in the same manner.
4. The Honourable Tribunal erred in law when it held as follows:
?It is no longer in doubt that the petition was served on the 3rd Respondent on 20/03/2019 as per the return of service, exhibit A attached to the application.?
5. The Honourable Tribunal erred in law when it held as follows:
?We do not believe the 3rd respondent that it was only on 24/03/2019 that the State Secretary of his political party, the 2nd respondent, informed him that he saw his name as a party in the petition.?
6. The Honourable Tribunal erred in law when it held as follows:
The 3rd Respondent Counsel also submitted that
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grant of the application would amount to denial of fair hearing against the 3rd Respondent. We reject this submission because the 3rd respondent, as already found above was given twenty-one (21) days to file his defence to the petition but neglected to utilize the opportunity given?
7. The Ruling of the Honourable Tribunal is against the weight of evidence.
In line with the rules of this Court, parties filed and exchanged their respective Briefs of Argument. The Appellants Brief of Argument was filed on the 24th of May, 2019. In response, the 1st and 2nd Respondents filed their Respondents Brief of Argument on the 31st of May, 2019. The Appellant filed an Appellant?s Reply Brief of Argument on the 3rd of June 2019.
Learned Counsel to the Appellant in the Appellant?s Brief of Argument formulated four issues for the determination of this appeal to wit:
(1) Whether the Honourable lower Tribunal was right when it resolved the issue of service on affidavit evidence without calling oral evidence in the face of apparent conflict in the affidavit evidence placed before the lower trial Tribunal.
(2) Whether from the
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affidavit evidence before the Honourable Lower Tribunal, there was no doubt as to service of the Petition on the Appellant.
(3) If the answer to the above is positive, whether the lower Tribunal was right when it failed to resolve the doubt in favour of the Appellant.
(4) Whether the lower Tribunal was right when it held that the Appellant?s Reply to the Petition was filed out of time and struck out same.
Learned Counsel to the 1st and 2nd Respondents for his part formulated a sole issue for determination in the 1st and 2nd Respondents Brief of Argument to wit:
?Whether the Appellant?s Reply to the Petition filed on 10/4/2019 out of time is not incompetent.?
?On the 13th of June, 2019 when this interlocutory appeal came up for hearing before us, learned Counsel for the Appellant, J.D. Olaniyan, Esq adopted and relied on the Appellant?s Brief of Argument and the Appellant?s Reply to the 1st and 2nd Respondents? Brief of Argument in urging us to allow the appeal and restore the 3rd Respondent?s Reply to the Petition struck out by the lower Tribunal. He further relied on Section 285
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of the Constitution of the Federal Republic of Nigeria (as amended) to submit that the Appellant should not have been shut out. It is significant to note that Section 285 of the Constitution referred to by Counsel has fourteen subsections. Counsel did not indicate which of the subsections he was relying on. Ours is an adversarial system of adjudication as such, I am unable to make a case for Counsel who failed to indicate which of the fourteen (14) sub-sections of Section 285 he relied on. See NEWSWATCH VS. ATTA (2006) LPELR – 1986 AT 32, PARAGRAPHS A – D; AKINBINU VS. OSENI & ANOR. (1992) LPELR – 341 AT 44 -45, PARAGRAPHS B – A; SODIPO VS. LEMNINKAINEN OY (1986) LPELR- 3087 AT 24, PARAGRAPHS B – D.
Learned Counsel to the 2nd Respondent adopted and relied on the 1st and 2nd Respondent?s Brief of Argument and urged us to dismiss the appeal.
The issues formulated by the Appellant?s Counsel are adequate for the determination of this appeal. I shall therefore determine this appeal based on those issues. Issues 1, 2 and 3 were argued together by Appellant?s Counsel. I would also resolve them together.
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ISSUES I, 2 AND 3.
(1) Whether the Honourable lower Tribunal was right when it resolved the issue of service on affidavit evidence without calling oral evidence in the face of apparent conflict in the affidavit evidence placed before the lower trial Tribunal.
(2) Whether from the affidavit evidence before the Honourable Lower Tribunal, there was no doubt as to service of the Petition on the Appellant.
(3) If the answer to the above is positive, whether the lower Tribunal was right where it failed to resolve the doubt in favour of the Appellant.
Learned Counsel to the Appellant in his Brief of Argument argued that failure of the lower Tribunal to call oral evidence to resolve the conflict in the affidavit in support of the application and the Counter Affidavit filed on his behalf was very fatal and urged us to so hold. He referred to paragraphs 3 and 4 of the affidavit in support of the application and paragraphs 6, 9 and 11 of the Counter Affidavit. For ease of reference, I shall reproduce the above stated paragraphs.
Paragraphs 3 and 4 of the affidavit at page 765 ? 766 of the record read thus:
3. I have the information, consent and authority of
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the Petitioners and my employers to depose to this application.
4. I know as a fact that:
i. The Petitioners? Petition was filed on 16/3/2019 but served on the 3rd Respondent on 20/3/2019. Certified True Copy of the Endorsement and Return is herewith attached and maker (sic) ?Exhibit A.?
ii. The 3rd Respondent has 21 days to file his Reply;
iii. The 21 days within which the 3rd Respondent may file his Reply lapsed on 9/4/2019.
iv. The 3rd Respondent filed his Reply on 10/4/2019 22 days after service of the Petition.
v. A reply filed outside 21 days prescribed by paragraph 10(2) of the 1st Schedule of the Electoral Act is incompetent
vi. The Tribunal has no power to extend time within which to file a Reply to the Petition.
vii. The 3rd Respondent?s Reply is liable to be struck out for incompetence.
viii. It is in the interest of justice to grant this application.?
Paragraphs 6, 9, 11 of the Counter Affidavit at pages 773 ? 774 of the record read thus:
?6. That paragraphs 4(i), (iii), (vii) and (viii) of the affidavit in support are untrue.
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9. That I am aware by virtue of the purported Endorsement and Return Exhibit ?A? attached to the supporting affidavit that all Respondents were served with copies of the Petition on 20th day of March, 2019, except the 3rd Respondent.
11. That I was informed by Hon. Olajide A. Stanley, (3rd Respondent) in the aforementioned Chambers on the 24th day of March, 2019 at about 2.00 pm and I verily believe him as follows:
i. That the (3rd Respondent) got a call from Hon. Wasiu Adeleke, Secretary of the 2nd Respondent on the 24th March, 2019 that a copy of a petition filed on 16th day of March, 2019 meant for the 2nd Respondent was served on him (Hon. Wasiu Adeleke) and his (3rd Respondent) name was listed as 3rd Respondent.
ii. That he immediately retained the services of ?Tunji Ogunrinde, Esq., to inquire from the registry of the Tribunal and obtain copy of the Petition to enable him study it and take further necessary steps.
?iii. That the said ?Tunji Ogunrinde, Esq., vide a letter dated 24th day of March, 2019 applied to the registry of this Honourable Tribunal and obtained a copy of the said
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Petition filed on 16th day of March, 2019. An acknowledged copy of the letter dated 24th day of March, 2019 is herewith attached as Exhibit ?A?.
iv. That the 3rd Respondent was able to get a copy of the Petition at the registry of this Honourable Tribunal through the letter of 24th day of March, 2019.?
It is the contention of Appellant?s Counsel that the fact that the portion meant for the 3rd Respondent?s endorsement on Exhibit ‘A’ is blank raises a serious doubt as to whether the Petition was served on the 3rd Respondent. He went on to highlight perceived conflicts in the two affidavits. Relying on the case of EMEKA VS. OKOROAFOR (2017) LPELR – 41738 (SC) Appellant?s Counsel submitted that service of originating process is a fundamental issue which goes to the root of the matter and borders on fair hearing. He further relied on the cases of MARK & ANOR. VS. EKE (2004) ALL FWLR (PT. 200)1455 AT 1479; N.I.P.S.S. VS. KRAUS THOMPSON ORGANISATION (2001) FWLR (PT. 45)702 AT 715 ? 716 to submit that where there is a conflict as to service, oral evidence must be called to resolve same. He argued that the
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affidavit of service relied on by the lower Tribunal is prima facie proof of service which only raises a presumption of service and the Appellant having challenged same, it behoves on the lower Tribunal to call oral evidence to resolve the issue. He urged us to hold that the 1st and 2nd Respondents have failed to prove that the Petition was served on the Appellant on the 20th of March, 2019 as held by the lower Tribunal.
He submitted further that failure of the 1st and 2nd Respondents to file a Further Affidavit in reaction to Appellant?s Counter Affidavit means that facts contained therein are uncontroverted and unchallenged and the Court is bound to accept them. He relied on the cases of OMOREGBE VS. LAWANI (1980) 3 – 4 SC 108 AT 117; LIPEDE VS. SONEKAN (1995) 1 NWLR (PT. 374) 668 AT 689 and NZERIBE VS. DAVE ENG. CO. LTD. (1994) 8 NWLR (PT. 361)128 to submit that the lower Tribunal was bound to accept facts contained in the Appellant?s Counter Affidavit as well as Exhibit ‘A’ attached thereto as they are unchallenged.
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Counsel argued further that the order of Substituted Service granted by the lower Tribunal was not fully complied with as
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the originating processes were served on the Appellant at an address different from that specified in the order. He submitted that it was not open to the bailiff to effect service at any other address without a fresh order from the Court.
He concluded by submitting that surrounding circumstances on whether service of Petition was effected on the Appellant on the 20th of March, 2019 and whether he collected same from the Registry of the lower Tribunal on the 24th of March, 2019 is fraught with serious conflicts which require the calling of oral evidence which the lower Tribunal failed to do.
In response learned Counsel to the 1st and 2nd Respondents submitted that there is no conflict in the affidavit evidence that require the calling of oral evidence to resolve before the lower Tribunal. He argued that Exhibit A attached to the motion clearly reveal that one Hon. Wasiu Adeleke accepted service for both the Appellant and the 4th Respondent.
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He submitted further that the contradictions and inconsistencies in the Appellant?s affidavit cannot metamorphose into a doubt that would require the calling of oral evidence. On the alleged
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contradiction in the proof of service in Exhibit A, learned counsel submitted it is obvious on the face of the document that one Wasiu Adeleke accepted service for both the Appellant and the 4th Respondent. He referred us to the signature on Exhibit A where the said Wasiu Adeleke signed for the 3rd Respondent.
On the submission of Appellant?s Counsel that failure of the 1st and 2nd Respondent to file a Further Affidavit is fatal, 1st and 2nd Respondents Counsel argued that there are no new vital facts capable of being controverted. He relied on the case of SHELL PETROLEUM DEVELOPMENT CORPORATION VS. LAWSON JACK (1998) 4 NWLR (PT. 545) 268 PARAGRAPH C. where it was held that there are exceptions to the general position of the law that uncontroverted depositions in affidavits are deemed to be correct. He further relied on the case of NATIONAL BANK VS. ARE BROTHERS (1977) 6 SC 97 to submit that a Court is not bound to accept facts deposed to in an affidavit merely because they are uncontroverted or because the other party has not filed any Counter Affidavit. He urged us to hold that the ?contradictions? alleged by the Appellant are
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self-created which he himself had a duty to explain.
On the submission of Appellant?s Counsel that the Petition was served at a different address, 1st and 2nd Respondents Counsel argued that the point was not raised at the lower Tribunal and did not arise from the Counter Affidavit.
He finally urged us to hold that the order for substituted service was complied with and that the Appellant was duly served with the Petition on the 20th of March, 2019.
The law is settled that service of an Originating Process is a condition precedent to the exercise of jurisdiction by a Court of law. Where there is no service of such process on the affected party the Court ceased with the case lacks the jurisdiction to hear or determine the matter. See KIDA VS. OGUNMOLA (2006) 13 NWLR (PT. 997) PAGE 377 AT 393 ? 394 PARAGRAPS F – A; MBADINUJU VS. EZUKA (1994) 8 NWLR (PT. 364)535 AT 566, and SKEN CONSULT (NIG) LTD. Vs. UKEY (1981) 1 SC 1.
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Pursuant to an order granted by the lower Tribunal to serve the Appellant (3rd Respondent) and the 2nd Respondent vide substituted means, the Assistant Secretary of the Tribunal proceeded to serve the Originating
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Processes on them. According to the 1st and 2nd Respondents, the Petition meant for the appellant was served on the State Secretary of the Peoples Democratic Party on the 20th of March, 2019 in compliance with the order of the Court. The lower Tribunal in a Ruling delivered on the 10th of May, 2019 struck out the Appellant?s Reply Petition on the ground that it was incompetent having been filed out of time. It is not in dispute that pursuant to the provision of paragraph 10(2) of the 1st Schedule to the Electoral Act 2010 (as amended) the Appellant shall file his Reply to the Petition within 21 days of the service of the Petition on him.
The lower Tribunal in its Ruling found that the Appellant was served with the Petition on the 20th of March, 2019 and as such the reply filed on the 10th April, 2019 was filed out of time. While the Appellant says he was served on the 24th of March, 2019, the lower Tribunal found he was served on the 10th of March, 2019.
From the affidavit evidence before the lower Tribunal, the 1st and 2nd Respondents relied on the proof of service attached to the affidavit in support of the motion as Exhibit ‘A’. The
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Appellant?s position is that Exhibit A does not support the fact of service of the Petition on the Appellant as the column meant for endorsement by him is blank. Appellant?s Counsel in paragraph 4.4 of the Appellant?s Brief of Argument submitted as follows:
?4.4 My Lords, the conflict is brought to fore or becomes apparent when one considers Exhibit ?A? annexed to the affidavit in support of the motion.
We want to particularly draw your Lordships? attention to the portion meant for the 3rd Respondent endorsement upon service on Exhibit ?A? of the 1st and 2nd Respondents, the said portion is blank, and was not endorsed.?
Arguing per contra at paragraph 4.05 of 1st and 2nd Respondents? Brief of Argument learned Counsel submitted as follows:
?What is more, Exhibit A is a Certified True Copy of the proof of service that forms part of the record of the Lower tribunal. A critical look at Exhibit A shows that one Hon. Wasiu Adeleke, secretary of the 4th Respondent herein accepted service for both the Appellant and 4th Respondent. The proof of service shows that Wasiu
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Adeleke signed twice and in his second signature across the first signature demarcated by a bracket, he indicated that he received on behalf of the 3rd Respondent notwithstanding that he did that under the heading ?Service on 2nd Respondent?. The recipient only did that either for his convenience or for other reason best known to him as the column for the 3rd Respondent was ignored.?
The crucial point to be noted here is that the Petition was served on the Appellant pursuant to an order of Court allowing substituted service on him. The order has been reproduced in the earlier part of this judgment. I find it pertinent to do so again. It reads:
?IT IS HEREBY ORDERED THAT:
1. The Petition and all the other processes filed in this Petition shall be served on the 2nd and 3rd Respondents as applied by serving same on the State Chairman, Peoples Democratic Party (PDP), or any of its officials or member of staff of the 2nd Respondent at the 2nd Respondent?s address, the Oyo chapter of Peoples Democratic Party (PDP), State Secretariat, Opposite Late Adedibu House, Oke Ado-Molete Road, Obafemi Awolowo Way, Molete,
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Ibadan, Oyo State and this shall be good and sufficient service.
The Appellant is the 3rd Respondent at the lower Tribunal. The order of Court above is very clear. It is that the Petition be served on the 3rd Respondent through the State Chairman, Peoples Democratic Party or any of its officials or members of staff of the 2nd Respondent i.e. Peoples Democratic Party. Exhibit A attached to the motion is the Certified True Copy of the Endorsement and Return of Service of the Petition. It is at pages 767 ? 768 of the record. I have perused the Certified True Copy of the Endorsement and Return. There is an endorsement at page 768 that Hon. Wasiu Adeleke, State Secretary acknowledged service for the 2nd and 3rd Respondents. The said Hon. Wasiu Adeleke signed twice on the column headed ?for service on 2nd Respondent.? He signed for the 2nd Respondent and also signed on the right for the 3rd Respondent. That Hon. Wasiu Adeleke signed twice on the column meant for the 2nd Respondent is not in dispute.
?By the order of the Court for substituted service, any process meant for the Appellant served on the secretary of the 4th Respondent is
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good service. It is not the case of the Appellant that Hon. Wasiu Adeleke did not sign the acknowledgment twice. He indicated distinctly that he signed for the 3rd Respondent. To my mind, the endorsement by appending his signature by Hon. Wasiu Adeleke (secretary of the 4th Respondent) mean nothing more than the fact of receipt of service by him on behalf of both the Appellant and the 4th Respondent. Premised on the order of Court, the secretary of the 4th Respondent had authority to collect the Petition on behalf of the Appellant. The endorsement by the Hon. Wasiu Adeleke for the 3rd Respondent at page 768 of the record is proper service and I so hold.
All the submission of Appellant?s Counsel on when the Appellant had knowledge of the Petition in the face of the endorsement of Hon. Wasiu Adeleke are irrelevant in the present circumstance. In the case of DICKSON VS. OKOI (2003) 16 NWLR (PT. 846) PAGE 397 AT 411 PARAGRAPHS F ? G, the Court held thus:
?Where in accordance with the rules of Court an order for substituted service is made and service is effected in compliance with such order, proof that the Defendant actually had
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knowledge of the process is unnecessary.?
Learned Counsel to the Appellant also made a heavy weather on the alleged conflicts in the affidavit in support of the motion and the counter affidavit. It is settled law that it is not in all instances where conflict arise in affidavit evidence that a Court is bound to call oral evidence to resolve. Where there is in existence authentic document which the Court can resort to in resolving the conflict, the need to call oral evidence will not arise. See EZECHUKWU VS. ONWUKA (2016) 5 NWLR (PT. 1506) 529 AT 559 – 560, PARAGRAPHS G – B; ATUNGWU VS. OCHEKWU (2013) 14 NWLR (PT. 1375) 605 AT 641, PARAGRAPHS B ? D.
In NAGOGO VS. CONGRESS FOR PROGRESSIVE CHANGE (2013) 2 NWLR (PT. 1339) 448 AT 474, PARAGRAPH A – C Peter-Odili, JSC held thus:
?From the above and the materials made available to the Court of first instance there were enough from which the Court could resolve the conflicts existing between the contending positions of the parties as shown in their affidavits for and against. At the risk of repetition, it is not only from oral evidence that conflicts in affidavit evidence would be
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settled. This is the point severally reiterated by this Court. See Nwosu v Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 688 at 718; Kimdey v Military Governor of Gongola (1988) 2 NWLR (Pt. 77) 445.?
See also SHELL PETROLEUM DEVELOPMENT CORPORATION VS. LAWSON JACK (1998) 4 NWLR (PT. 545) 268 PARAGRAPH C.
The Appellant as well as the 1st and 2nd Respondents relied on Exhibit ‘A’ attached to the affidavit in support of the motion. It is trite that documents attached to an affidavit from part of the affidavit. Having found that the Petition was served on the Appellant pursuant to the order of substituted service, Exhibit ‘A’ which is a document relied upon by both parties is in my view sufficient to resolve any conflicts that exist between the position of the parties in this case. The lower Tribunal did no wrong by electing not to call oral evidence to resolve the purported conflict in the affidavit of parties and I so hold.
It is further the complaint of the Appellant that service was effected on the secretary of the 4th Respondent at PDP secretariat No. 250 Obafemi Awolowo Road contrary to the address stated on the
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order of Court. The affidavit of service of the assistant secretary at page 366M of the record shows that the 3rd Respondent was served through the state secretary of the PDP at the PDP secretariat, No. 280, Obafemi Awolowo Road. That is the only evidence on record of where the process was served. The address for service on the order of Court for substituted service is the Oyo Chapter of Peoples Democratic Party (PDP) State Secretariat, Opposite Late Adedibu House, Oke Ado-Molete Road, Obafemi Awolowo Way, Molete, Ibadan, Oyo State. There is no evidence that the location 280, Obafemi Awolowo Road is different from the address on the order. The complaint of the Appellant?s Counsel on this point is not supported by evidence on record. Such complaint cannot be made in vaccum. Appellant?s complaint on the address of service does not hold water and I so hold.
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Finally, on issues No. 1, 2, 3, I hold that the lower Court was right when it resolved the issue of service of the petition on the Appellant by resorting to document in its file without calling oral evidence. There was no doubt as to service of the Petition on the Appellant and when he was
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served.
Issues 1, 2 and 3 are thus resolved against the Appellant.
ISSUE 4.
?Whether the lower Tribunal was right when it held that the Appellant?s Reply to the Petition was filed out of time and struck out same?
Paragraph 10(2) of the First Schedule to the Electoral Act 2010 is relevant to the resolution of this issue. It provides thus:
?10(2) The non-filing of a memorandum of appearance shall not bar the Respondent from defending the election Petition if the Respondent files his reply to the election Petition in the Registry within a reasonable time, but in any case, not later than twenty-one (21) days from the receipt of the election Petition.?
The Appellant had twenty-one days from the receipt of the Petition to file his reply and I so hold. The pertinent question now is whether the Appellant?s reply to the Petition filed on the 10th of April, 2019 was filed within 21 days of the receipt of the Petition?
I have held earlier that the Petition was served on the Appellant on the 20th of March, 2019 vide substituted means pursuant to an order of Court. Where the order of substituted
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service is complied with, proof of when the Defendant had knowledge of the process is unnecessary. He is deemed to have received the process on the day of service. The Appellant, who was served the Petition on the 20th of March, 2019 is in receipt of same on that day and I so hold. He therefore had 21 days from the 20th of March, 2019 to file his reply. 21 days from the 20th of March, 2019 expired on the 9th of April, 2019. The lower Tribunal was therefore right when it found as such in its Ruling. It is not in dispute and it is evident from the record that the Appellant?s reply to the Petition was filed on the 10th of April, 2019. This is outside the time limit provided for doing so under paragraph 10(2) of the 1st Schedule to the Electoral Act. The Appellant?s Reply was filed outside the statutory period allowed to do so. Failure of the Appellant to file his reply within time renders the Appellant?s Reply filed on the 10th of April, 2019 incompetent.
I wish to emphasize again that Election Petition Proceedings are sui-generis. They have their own set of rules to aid the quick dispension of justice. They are distinct from Civil
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Proceedings. By their nature, the rules must be followed strictly. Parties must also be reminded that election matters are time bound and time sensitive and as such where the relevant statute provide time within which to take certain steps, they must comply.
Giving time limit to take steps in Election Petition Proceedings allows for speedy hearing of Election Petitions which in turn is in line with the Constitutional provision of right to fair hearing within reasonable time.
Appellant?s Counsel in arguing this issue talked about denial of fair hearing. The issue of fair hearing does not arise at all in this case. The Appellant who had twenty-one days within which to file his reply did not do so within the time allowed. Failure to file within time by the Appellant was self-inflicted. He cannot now complain. His right to fair hearing guaranteed under Section 36(1) of the 1999 Constitution (as amended) has not been breached in any way.
The lower Tribunal at page 802 of the record found as follows:
?We resolve the lone issue for determination in favour of the Petitioner/Applicants and grant the application as prayed. The reply of
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the 3rd Respondent filed on the 10th day of April, 2019 is struck out.”
The above finding cannot be faulted. It is in accordance with the law and the evidence on record.
Issue No. 4 is resolved against the Appellant.
Having resolved all issues against the Appellant, the inevitable conclusion is that this appeal lacks merit and should be dismissed. It is therefore dismissed.
I affirm the ruling of the lower Tribunal in Petition No: EPT/OY/HR/08/2019 delivered on the 10th of May, 2019 striking out the 3rd Respondent?s reply to Petition filed on the 10th of April 2019. Parties are to bear their own costs.
HARUNA SIMON TSAMMANI, J.C.A.: I agree with the judgment of my learned brother Folasade Ayodeji Ojo, JCA just delivered.
It is apparent on the document exhibited as the proof of service (Exhibit “A”), that the Appellant was duly served the petition in accordance with the order for substituted service. There is evidence on the said document that the recipient of the processes endorsed thereon as receiving for the Appellant. The fact that the recipient did not endorse on the column meant for
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the 3rd Respondent/Appellant was left vacant, to my mind is merely a matter of form. It does not affect the substance and merit of such service.
On that note, I agree with my learned brother that this appeal is lacking in merit. It is accordingly dismissed. I abide by the order on costs.
ABUBAKAR MAHMUD TALBA, J.C.A.: I had the privilege of reading in draft the Judgment of my learned brother Folasade Ayodeji Ojo JCA, just delivered.
In this appeal the Complaint of the Appellant centered on denial of fair hearing. The pertinent question is whether the Appellants reply to the petition filed on 10th of April, 2019 was filed within 21 days of the receipt
It is on record that the petition was served on the of the petition. Appellant on the 20th of March, 2019 vide substituted service pursuant to order of Court.
The Appellant had 21 days from 20th of March, 2019 to file his reply as required by paragraph 10 (2) of the first schedule to the Electoral Act, 21 days from the 20th March, 2019 expired on the 9th of April, 2019.
?The lower tribunal was right in its finding that the 3rd Respondents reply filed on 10th
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day of April, 2019, was filed out of time. And accordingly struck out same.
Consequently, I affirm the ruling of the lower tribunal in petition No: EPT/OY/HR/08/2019 delivered on the 10th of May, 2019. The appeal lacks merit and same is dismissed.
I abide by the consequential order in the lead Judgment on cost.
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Appearances:
J. D. Olaniyan, Esq.For Appellant(s)
P.A. Fakoya, Esq. holding the brief of Sikiru Adewoye, Esq. for the 1st and 2nd Respondent.
No Representation for the 3rd and 4th RespondentsFor Respondent(s)
Appearances
J. D. Olaniyan, Esq.For Appellant
AND
P.A. Fakoya, Esq. holding the brief of Sikiru Adewoye, Esq. for the 1st and 2nd Respondent.
No Representation for the 3rd and 4th RespondentsFor Respondent
