Embattled Senator Dino Melaye (APC, Kogi West) whose recall process began on March 27, 2018, has asked the Supreme Court to declare the process initiated by the Independent National Electoral Commission (INEC) based on the recent Court of Appeal judgment as illegal and unconstitutional.
Melaye’s prayers are contained in the Notice of Appeal filed at the Supreme Court by his lawyers, Chief Mike Ozekhome (SAN) and Nkem Okoro on April 3, 2018.
In the appeal before the apex court, Melaye is further asking the Supreme Court to set aside the judgment of the Court of Appeal delivered on March 16, 2018, which dismissed his appeal against the recall for lacking in merit.
Besides, the Senator has asked the apex court to declare that the statutory 90 days period as provided for in section 69(b) of the 1999 Constitution (as amended) , having elapsed by effluxion of time on September 23, 2017, INEC can no longer validly proceed on the basis of the purported petition for his recall, presented on June 23, 2017.
He further prayed for an order of perpetual injunction restraining INEC from commencing or further continuing with the process of acting on the petition presented to it by his constituents.
Some of the seven grounds upon which the appeal is anchored further challenged the entire decision of the Court of Appeal.
Specifically, ground one of the appeal said the Court of Appeal erred in law when it held that: ‘an unchallenged finding of fact stands’, the basis of which the court held that it lacked the jurisdiction to entertain his appeal, for the alleged failure to appeal against a specific finding of fact at the trial court.
“That the Court of Appeal erred in law when it held that ‘it is not for the court to verify the signature on the petition. It is the duty of INEC’, by reason of which the court failed to invalidate the petition presented to INEC.
Another ground of appeal also faulted the decision of the Court of Appeal that ‘the voters at the referendum are to show through their votes loss of confidence in the member.
It is not for the court to assess the reason for the loss of confidence’ the basis of which it held that the uncontroverted averments in the affidavit of the appeal at the trial court, are not material.
The Court of Appeal had on March 16, 2018, dismissed Melaye’s appeal for lacking in merit as it disclosed no cause of action.
In a unanimous judgment of the appellate court delivered by Justice Tunde Awotoye, the Court of Appeal resolved all the issues contained in the appeal in favour of the INEC.mOther Justices on the panel were Justice Mohammed Garba and Justice Mohammed Ambi-Danjuma.
The Court of Appeal further affirmed the judgment of the trial court judge, Justice Nnamdi Dimgba of the Federal High Court in Abuja, who held that Melaye’s suit was “hasty, premature and presumptuous.”
The Court of Appeal also dismissed Melaye prayers to set aside the lower court judgment and stop the electoral body from embarking on the recall process.
While upholding the decision of the trial court, the appellate court even held that the trial court ought to have struck out the suit for not disclosing any cause of action.
On the issue of lack of fair hearing raised by the embattled senator, the court dismissed the claim on the grounds that INEC is neither a tribunal or a court of law.
The appellate court said there is no limitation to the counting of the 90 days for the recall process, as it can be extended.
The court further held that the powers of the INEC is a statutory one given by the constitution and not even the court can take away the powers of INEC to conduct a referendum.
The court also held that ‘the powers of the INEC is a statutory one given by the constitution and not even the court can take away the powers of INEC to conduct a referendum.
‘Such 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 disclose any case of action and the suit ought to have been struck out by the trial court for not disclosing any cause of action.
” 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,”Justice Awotoye had held.
The Court of Appeal further held that the 90 days period provided by the constitution for INEC to commence the process of recall can be extended, since it has not started to run.
Based on the judgment, INEC announced afresh the timetable for the recall of Senator Melaye from the National Assembly, with the process beginning on Tuesday, March 27, 2018.
The Daily Times recalls that Senator Melaye, who sought to block the recall filed an action against INEC when a letter was sent by the electoral body notifying him of a petition for his recall, in accordance with its guidelines for the recall of members of the National Assembly.
To carry out the verification of the petitioners, INEC said it will on July 3, 2017, issue a public notice stating the day(s), time, location and other details for the verification.
Bug Senator Melaye has approached the Federal High Court in Abuja asking the court to declare the petition presented to INEC illegal, unlawful and unconstitutional.
In the suit, he sought a declaration that the recall process “is tainted with bad faith, political malice and personal vendetta”, alleging that the petition was signed by “fictitious and none existing persons” in his senatorial district.
He also asked the court to determine whether, by the provisions of Sections 68 and 69 of the 1999 Constitution, he can be vividly recalled when the petition was allegedly signed by persons who do not come from his senatorial constituency.
But all his prayers were refused and Justice Dimgba dismissed the suit on the grounds that it was ‘hasty, premature and presumptuous.”
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