Nigerian Concord Newspaper
At the resumed hearing of the case of the suspended Benue state chairman of APC, Austin Agada and others vs All Progressives Congress APC, Mathew Burkaa SAN counsel to APC filed and served the following processes on Austin Agada Lawyer, Counter Affidavit and Written Address in opposition to the Originating Motion Number MHC/1587M/24, Counter Affidavit and Written Address in opposition to Motion Number, MHC/1586M/24 praying for interlocutory injunction, counter Affidavit and Written Address in opposition to Motion Number, MHC/1597M/24 for leave to issue and serve Form 48 against the Respondent, Motion on Notice for the regularization of the 3 Counter Affidavits, and Affidavit of Facts.
After announcing the case, Counsel to Austin Agada, MT. Alybo sought an adjournment to study and respond to the processes served on him, but Counsel to the APC, Matthew Burkaa SAN, who appeared with Yahaya Dangana SAN, leading 6 other Lawyers, contended that a stand down of 1 Hour was enough for him to file processes in response to the Applicants’ processes served on him before the sitting of the Court. The matter was accordingly stood down to 11am, a judiciary Aide to Governor Alia reported.
When the Court re-convened, Learned Silk for APC Matthew Burkaa SAN indicated to the Court that he had filed processes in response to the papers served on him by Austin Agada lawyer today, and he was ready to move the application seeking the setting aside of the interim order granted on 21/08/2024.
Counsel to Austin Agada Mr. Alyebo sought an adjournment to peruse through the processes filed by the Respondent in response to his processes but this was sharply opposed by Matthew Burkaa SAN who stated that the Further Affidavit just filed by the Respondent only exhibited the Originating Motion filed by the Applicants and Mr. Alyebo cannot seek for an adjournment to study a process filed by him.
After hearing both Counsel, Justice Theresa Igoche gave Mr. Alyebo an option of a stand down for 1hr, which Mr. Alyebo initially agreed to but suddenly backtracked and indicated that he was ready to proceed with the hearing.
Matthew Burkaa SAN then moved his application, praying for the setting aside of the interim order made on 21/08/2024.
He argued that an order of interim injunction can only be made during the pendency of a suit and in the instance case, there was no suit before the Court as the originating process filed by the Applicants was not signed by any Counsel.
He referred the Court to a Certified True Copy of the Originating Motion which he applied for and was issued by the Court on 27/08/2024, which did not carry any signature of Counsel.
Responding, Mr. Alyebo adopted his Counter Affidavit in opposition to the application and stated that by the authority of GTB V. INNOSON decided in 2017, a process filed in court can be authenticated by a signature or mark of the Counsel who prepared it.
He added that in the instant case, there was a mark against the name of the lawyer who filed the processes. At this point, the Judge cut in by saying that what was in the process was only a tick beside the name of one of the lawyers for the Applicant and not a signature or a mark.
Mr. Alyebo then insisted that even though the process was not signed by Counsel, the mark or tick sufficed to make the process competent. He also pleaded with the Court that the mistake of not signing the originating process was that of Counsel and same should not be visited on the Applicants.
Mr. Alyebo submitted in alternative that the originating process, which was attached to the Applicants’ Counter Affidavit, that was signed, and the Court should ignore the one not signed as exhibited by the Respondent.
In his response on points of law, Mathew Burkaa SAN submitted that the authority of GTB V. INNOSON cited by Mr. Alyebo was a shot in the foot as the holding in the case was rather against the Applicants.
He also submitted that the Applicants cannot prevaricate by arguing that ticking stands for signature on the one hand and stating on the other hand that the process was actually signed by Counsel. He then urged the Court to grant the application by setting aside the order of interim injunction made on 21/08/2024 and consequently striking out the suit.
The Court then adjourned the matter to Tuesday, 10th September, 2024 for ruling.
Implication of the Affidavit of facts filed by the APC in Agada’s case today, is as follows:
That the dissolution of the Benue State Executive Committee of the APC by the NWC was done on the 21/08/2024 at about 11am, by which time no court process and No order of interim injunction in Agada’s case was served on the Party. That it was after the dissolution of the Benue State Executive Committee of the APC and inauguration of the 7-man Caretaker Committee by the NWC that the order of interim injunction was made by the Court.
That a copy of the interim order made by the High Court of Benue State was not issued to either Agada or the Court Bailiff on the 21/08/2024 so the order could not have been served on the APC on 21/08/2028.
That it was after Agada paid for the certification of the interim order on 22/08/2024 at about 10:48am that the order of interim injunction was issued to him.
That the order of interim injunction was not served on the APC on the 21/08/2024 and same has not been formally served on the APC till date.
That Agada mutilated the order of interim injunction to make it look as having being authenticated and issued on the 21/08/2024.
The person who claimed to have served the order of interim injunction on the APC is not a Bailiff of the High Court of Benue State and was not authorized to serve any process on the APC.