The Federal High Court in Abuja on Thursday struck out a motion exparte brought before it by the Independent National Electoral Commission (INEC), seeking substituted service on the Senator representing Kogi West Senatorial District, Dino Melaye of a copy of the petition and other accompanying documents that informed the commencement of the process of his recall from the Senate.
Justice Nnamdi Dimgba struck out the motion following an oral application by INEC’s counsel, Yunus Ustaz Usman (SAN) to withdraw the motion.
Justice Dimgba also directed that all applications relating to the petition be henceforth resolved at the Court of Appeal.
Recall that Justice Dimgba had in a judgment he delivered on September 11, 2017, gave the electoral body the go-ahead to commence the process of Dino Melaye’s recall after dismissing Melaye’s suit that sought to stop his recall by INEC.
The judge however ordered INEC to forward a copy of the said petition it received from Melaye’s constituency, signatories, including the full list of petitioners to Senator Melaye and the timetable for verification.
But efforts by the electoral body to serve the court’s order on the Senator proved abortive as he was alleged to have been evading service.
Consequently, INEC in an application dated 15th September 2017, approached the court for an order of substituted service on Melaye.
When the matter came up yesterday, Melaye’s counsel, Nkem Okoro who said he was holding 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.
Responding, INEC’s counsel who claimed he was just served with the record of the appeal argued that ordinarily, the judge should hands off from any application related to the matter if it was an ordinary case and added that, since the matter is election related, the court cannot be restrained.
The trial Judge however asked if in view of the final judgment the court delivered on 11th September 2017, wherein the matter was disposed of on merit, it still has powers to entertain any application on the same matter?
The Judged further asked if besides the exparte motion of the plaintiff, there are no other means available for the plaintiff to enforce the court order of 11th September.
It was at this point that INEC’s counsel applied orally for the withdrawal of the exparte motion and filed the necessary application.
“I concede to the point made by my Lord and I want to withdraw the motion exparte dated 15th September 2017”, Usman said.
Justice Dimgba then struck out the exparte motion at no cost following its withdrawal by INEC’s counsel and added that, “In the face of unclear evidence of the record of appeal, it is better than all applications relating to the matter be resolved at the Appeal Court”.