Melaye Senator appeals against recall process judgment

Kogi Senator, Dino Melaye has instituted an appeal to challenge the court's nod on the process to have him recalled by his constituents.

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Senator Dino Melaye

(Punch)
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Senator Dino Melaye has filed an eight-ground notice of appeal before the Court of Appeal in Abuja challenging the judgment of the Federal High Court in Abuja which validated his recall process.

In a report by Punch, the Senator representing Kogi West Senatorial District on Wednesday, September 13, 2017, filed the appeal notice after the Federal High Court's nod to the commencement of the recall process initiated by members of his constituency.

The senator, through his lawyer, Chief Mike Ozekhome (SAN), argued in his first grounds of appeal that Justice Nnamdi Dimgba erred in law “when he held that the petition presented to INEC” for his recall “was valid, even when the petition exhibited by INEC was not signed by more than half of the registered voters in the plaintiff’s appellant’s constituency as is required by Section 69 of the 1999 Constitution.

Ozekhome maintained under this grounds of appeal that “the petition presented to INEC “by the purported constituents and exhibited before the court as Exhibit lNEC 1, was only signed by three persons, which number is less than the half of the registered voters” in the  constituency “as provided for by Section 69 of the constitution.”

The Senior Advocate of Nigeria also maintained that “a mere statistical analysis and general summary for the recall of Senator Dino Melaye (Exhibit DM13) done by INEC  itself  and wholly relied upon by the trial court  to hold that the petition was valid, can neither replace nor take the place of the petition itself, which was tendered by INEC as an exhibit.”

In the second grounds of appeal, the Ozekhome held that the Justice Dimgba erred in law “when he held that the 90 days provided for by Section 69 of the Constitution of the Federal Republic of Nigeria, as altered, was paused since June 23, 2017, when the plaintiff/appellant commenced this action and subsequently ordered that the period would continue to run from September 11, 2017, the date of the judgment of the trial court” was delivered.

He maintained that contrary to Dimgba’s finding, “the time fixed by the constitution for the doing of an act cannot be extended or expanded or elongated or in any way enlarged regarding what is to be done where not done within the time so fixed.”

According to him, such time fixed by the constitution, “lapses since the court has no jurisdiction to extend the time fixed by the constitution for the doing of an act.

Elongating or extending the time as fixed by the constitution requires constitutional amendment and not at the whims and caprices of a trial court,” the appellant added.

He also argued in another grounds of appeal that Justice Dimgba was wrong “by failing to consider the Notice to Produce issued on INEC to produce the petition for the recall of the plaintiff/ appellant and not invoking the provisions of Section 167(d) of the Evidence Act, in the face of failure of the INEC to produce the purported petition allegedly signed by the plaintiff’s/appellant’s constituents despite service of a notice to produce on it.”

Melaye's advocate added that instead of doing this, the judge relied “on mere statistical analysis prepared by INEC itself to validate a petition which was invalid on its face.”

ALSO READ: Court says senator Melaye's recall process can now continue

Giving the particulars of the said error, the appellant stated that INEC, in its counter-affidavit to this  originating summons, “exhibited the purported petition for the recall of the plaintiff which was signed by only three persons, a number grossly less than the number as required by the constitution.”

He added that he issued and served on INEC a notice to produce the petition for the recall as signed by more than half of the registered voters in the plaintiff’s constituency, “which it failed to do.”

He added, “Notwithstanding the Notice to Produce, INEC failed, refused and neglected to produce the said petition before the court.

“The court failed to invoke the provisions of Section 167(d) of the Evidence Act to the effect that failure by INEC to produce the said petition meant that such petition, if it were produced, would have been adverse to the interest of lNEC.”

Justice Dimgba had in his judgment on Tuesday, September 12, 2017, permitted INEC to proceed with the exercise of verifying the signatures of the 188,588 registered voters who were said to have said signed in support of the recall process.

The 188,588 voters were said to have constituted 52.3 per cent of the 360,098 total registered voters in the Kogi West Senatorial District.

Justice Dimgba also held that contrary to Melaye’s contention, there was no provision in Section 69 of the constitution requiring his constituents to afford him fair hearing before sending such petition to INEC.

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