The motion seeking an order of the Federal High Court in Abuja allowing it to serve the recall petition on Kogi West Senator, Dino Melaye has been withdrawn by the Independent National Electoral Commission (INEC)
Justice Nnamdi Dimgba struck out the motion after INEC’s lawyer, Mr Yunus Ustaz (SAN), announced the withdrawal in court on Thursday.
The judge also directed that all issues about the case should after that be taken to the Court of Appeal.
He noted that since Melaye’s appeal against the September 11 judgment of the court had been entered at the Court of Appeal, all pending applications, including the one filed by Melaye for the stay of execution of the verdict, should be taken to the appellate court.
He added that his judgment being on a “novel” issue of recall in the Nigerian courts, it was better to be allowed to be resolved by the Court of Appeal.
INEC had, on September 15, filed the ex parte motion, seeking substituted service of the recall petition on Melaye, following an alleged refusal of the Senator to accept service of the petition and other accompanying documents as earlier ordered by the court on September 11.
Ustaz also maintained on Thursday that Melaye had been “dodging” service, even as it was widely reported that an attempt by INEC to serve Melaye during the Senate’s plenary on Tuesday also failed.
The INEC lawyer had earlier, on Thursday, urged Justice Dimgba to hear the commission’s ex parte motion for substituted service, but Melaye’s counsel, Mr Nkem Okoro, opposed the hearing on the grounds that the court no longer had jurisdiction to hear any application concerning the case since his client’s appeal against the September 11 judgment of the court had been “entered” at the Court of Appeal.
But the INEC lawyer later, 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 September 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 judgment, having been delivered in the case, the filing of an ex parte motion was not the appropriate means of enforcing the judgment.
Ustaz initially insisted that the judge had the power to go on with the hearing of the motion, but later agreed with the judge and withdrew the motion after conferring with other lawyers in his team.
It was then struck out by the judge.
Justice Dimgba had, in his judgment delivered on September 11, dismissed Melaye’s suit challenging the validity of the recall process, but made it a pre-condition for the exercise to commence, that the electoral body must serve the Senator with the recall petition and the accompanying documents, including the signatures of the about one-half of the constituents calling for his (Melaye’s) recall.
Earlier on Thursday, Melaye’s lawyer was the first to address the judge, saying the matter was ordinarily slated for a hearing of pending applications.
But he said, “The record of appeal has been transmitted to the Court of Appeal and the appeal duly entered in line with Order 4 (10) and (11) of the Court of Appeal rules.
“Upon the entering of the appeal, the trial court is divested of the jurisdiction to continue adjudicating or entertaining the further application in respect of the matter.”
He then tendered the document showing that the appeal had been entered by the Court of Appeal and served a copy on INEC’s lawyer.
“We urge your lordship, most respectfully, to divest yourself from hearing any further application in this matter, as any such application will be made by the appellate court,” he said.
But in response, Ustaz acknowledged that he had just been served with the document relating to the appeal, maintaining that the referendum, which formed the hub of the case, had a special status like one revolving round an election.
He cited Section 156 of the Electoral Act 2010 (as amended) to back his argument that a referendum had the same status as an election.
He conceded that in ordinary cases, “the entering of an appeal robs the lower court of its jurisdiction to proceed further with any other application about the matter”.
While attacking the legality of the document tendered by Melaye’s lawyer on the basis that it was not certified, Ustaz said, “There is no evidence before your lordship that the appeal had been entered.”
It was after hearing both lawyers that the judge raised the question of the propriety of the ex parte motion filed by INEC.
Source: ( Punch Newspaper )