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Why Court said Melaye’s appeal lacks merit, gave INEC nod to resume recall

By Ikechukwu Nnochiri

THE Court of Appeal sitting in Abuja, on Friday, gave the Independent National Electoral Commission, INEC, the nod to go ahead with process for the recall of Senator Dino Melaye who is representing Kogi West Senatorial District.

The appellate court, in a unanimous judgement by three-man panel of Justices, dismissed as grossly lacking in merit, an appeal Melaye lodged to challenge his planned recall.

Sen. Dino Melaye

Justice Tunde Awotoye who delivered the lead verdict, resolved all the issues Melaye raised in his appeal, in favour of INEC, saying the suit did not disclose any cause of action.

Melaye had gone before the appellate court to set-aside the September 11, 2017, judgment of the Federal High Court in Abuja, which not only declined to stop the recall process, but okayed INEC to verify signatures of 188,588 registered voters from Kogi West that purportedly signed the petition against him.

Justice Nnamdi Dimgba of the high court had in his verdict, held that Melaye’s legal moves to stop his recall was “hasty, premature and presumptuous.”

The lower court however ordered INEC to furnish the lawmaker with a copy of the petition against him and other relevant documents involved in the recall process. Nevertheless, frustrated by its inability to reach the lawmaker to serve him the petition, INEC, on September 15, filed an ex-parte motion for leave to dump the documents in front of Melaye’s office at the National Assembly.

Before the ex-parte could be heard, Melaye, through his lawyer, Mr. Nkem Okoro, notified  the court that he has lodged the appeal that was dismissed on Thursday. Consequently, Justice Dimgba handed-off the case, saying he could no longer exercise jurisdiction on the ex-parte motion since his court had already given judgment on the matter.

He asked the parties to take their case before the appellate court.

Meanwhile, in its judgment, the Court of Appeal held that the lower court ought to have struck out Melaye’s suit in its entirety. The appellate court dismissed the issue of lack of fair hearing that Melaye raised against INEC, stressing that the electoral body was neither a tribunal nor a court of law. The court said there was no limitation to the counting of 90 days for the recall process, noting that the period could be extended since it had not started to run.

Besides, the appellate court held that the power of INEC was a statutory one that was given by the constitution.

It said no court could take away the powers of INEC to conduct a referendum for the purpose of recalling a lawmaker.

According to the appellate court, “Statutory bodies like the INEC should be allowed to exercise their statutory powers without interference by the court.

“The appellant cannot claim that his right of fair hearing was infringed upon. His right to fair hearing has not been violated since INEC as a statutory body is not a tribunal neither is it a court of law.

“The appellant has not disclosed any cause of action and the suit ought to have been struck out by the trial court for not disclosing any cause of action. I agree with the decision of the trial court. Ordinarily, it ought to have struck out the suit for non disclosure of cause of action. This is because where there is no cause of action, the court has no jurisdiction to hear the suit.

“Having resolved all the issues in the appeal against the appellant, I hereby struck out the suit and dismiss the appeal”.

Meantime, Melaye, through his lawyer, vowed to appeal the judgment at the Supreme Court. It will be recalled that Melaye had shortly after INEC declared its readiness to kick-start his recall, filed legal action to abort the process.

He prayed the court to stop the electoral body from conducting any referendum predicated on “fictitious petition” that was purportedly submitted to it by his constituents. He insisted that the petition was invalid and of no effect, alleging that it was signed by fictitious, dead and none existing persons in his senatorial district.

Contending that he was not notified or served a copy of the petition before INEC commenced the recall process, Melaye, specifically urged the court to determine whether by provisions of Sections 68 and 69 of the Constitution, he is entitled to a fair hearing before the process of his recall as envisaged by the provisions of Section 69 of the Constitution, could be triggered.


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