Recall shifts to Appeal Court as INEC seeks substituted service

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September 28, 2017 4:29 PM

In striking the motion, Dimgba directed that all issues pertaining to the case should thereafter be taken to the Court of Appeal.

The Independent National Electoral Commission (INEC) on Thursday withdrew its motion seeking a court order to serve the recall petition on Sen. Dino Melaye through substituted means rather than personal service.

Justice Nnamdi Dimgba of the Federal High Court, Abuja, struck out the motion after INEC’s counsel, Mr Yunus Usman (SAN), announced the withdrawal in court.

He noted that since Melaye’s appeal against the Sept. 11 judgment of the court had been entered at the Appellate court; all pending applications should be taken there.

The judge added that the application filed by Melaye, the senator representing Kogi West, for a stay of execution of the verdict, should also be taken to the court.

INEC had on Sept. 15 filed the ex-parte motion seeking substituted service of the recall petition on Melaye.

The motion was filed following the alleged refusal of the embattled senator to accept service of the petition and other accompanying documents as earlier ordered by the court on Sept. 11.

At the resumed hearing, INEC’s counsel had urged the court to hear the ex-parte motion, but Melaye’s counsel, Mr Nkem Okoro, opposed the hearing.

Okoro opposed the motion on the grounds that the court no longer had jurisdiction to hear any application concerning the case since his client’s appeal against the Sept. 11 judgment had been “entered’’ at the Court of Appeal.

INEC’s counsel, in the course of the proceedings, withdrew the motion after the judge raised some questions about the propriety of the ex-parte motion filed after the court had finally disposed of the case by delivering judgment on Sept. 11.

Justice Dimgba had noted that Order 6 of the Federal High Court Rules under which INEC filed the ex-parte motion presupposed that there was a pending case.

The judge explained that the judgment, having been delivered in the case filing an ex-parte motion, was not the appropriate means for enforcement of the judgment.

Usman agreed with the judge and withdrew the motion which was consequently struck out by the judge.

The News Agency of Nigeria (NAN) reports that Justice Dimgba had in his judgment delivered on Sept. 11, dismissed Melaye’s suit challenging the validity of the recall process.

The judge ruled that as a pre-condition for the exercise to commence, the electoral body must serve the senator with the recall petition and accompanying documents, including signatures of the constituents recalling Melaye.

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