The Federal High Court in Abuja on Thursday, September 28, 2017 struck out a motion exparte seeking a substituted service on Senator Dino Melaye by the Independent National Electoral Commission (INEC).
The motion, which was earlier withdrawn by INEC before it was struck out by Justice Nnamdi Dimgba, appears to be a setback on several efforts at enforcing a court order on the Senator.
Justice Dimgba struck out the motion following an oral application by INEC’s counsel Yunus Ustas Usman (SAN), to withdraw the motion.
The judge further directed all applications relating to the petition for the recall of the Senator to be henceforth resolved at the Court of Appeal.
Justice Dimgba had, in his September 11 judgment, gave INEC the go-ahead to continue with the process of recall after dismissing Melaye’s suit seeking to stop the move by INEC.
But the Judge had equally ordered INEC to forward a copy of the said petition it received from Melaye’s constituency, signatories to the petition as well as the full list of petitioners to Senator Melaye for verification.
However, efforts by the electoral body to serve the court’s order on the Senator had proved abortive as he was alleged to have been evading service.
Consequently, INEC in an application dated September 15, approached the court for an order of substituted service on him. And when the matter came up yesterday, Melaye’s counsel, Nkem Okoro, who held brief for Mike Ozekhome (SAN), urged the court to divest itself of jurisdiction in all applications relating to the matter on the grounds that appeal has been entered at the Court of Appeal.
Okoro argued that it would amount to judicial impertinent for the judge to continue with any application relating to the issue.
In his response, counsel to INEC – Usman, who claimed he had just been served with the record of the appeal, argued that ordinarily, the judge should hands off from any application relating to the matter if it was an ordinary cases.
According to him, since the issue of referendum was election-related, the court could not be restrained.
In an attempt to resolve the issue, Justice Dimgba asked, if in view of the final judgment the court delivered on September 11, wherein the matter was disposed of on merit, it still has powers to entertain any application on the same matter, and if besides the exparte motions of the plaintiff, there were no other means available for the plaintiff to enforce the court order of September 11.
It was at this point that counsel to INEC applied to withdraw the exparte motion and file the necessary application.
He said: “I concede to the point made by my Lord and I want to withdraw the motion exparte dated September 15, 2017.”
Justice Dimgba consequently struck out the exparte motion at no cost to the parties following its withdrawal by INEC’s counsel.
“In the face of uncleared evidences of the record of appeal, it is better that all applications relating to the matter be resolved at the Appeal Court,” the judge stated.
By Chinyere Obia