By Jude Chinedu, Enugu
The Governorate Election Appeal Court in Enugu State on Saturday ordered substitute notice of a summons issued to the Resident Election Commissioner, REC, in Enugu State, Dr. Chukwuemeka Chukwu.
Previously, the court had issued a summons ordering Enugu REC to bring the BVAS machines used for the March 18 gubernatorial election to court.
When the case was brought up on Saturday, lawyers for the petitioners led by Valerie Azinge, SAN, who appeared with Chief Alexander Ejesieme, SAN, among others, drew the court’s attention to the summons issued in the Enugu REC and asked if or he was not in court.
At this point, Azinge petitioned the court to allow Ejesieme to take over the proceedings.
Ejesieme asked the lawyer for the first defendant, INEC, if the subpoena witness was in court.
In response, INEC’s lawyer, Hyacinth Okoli, said: “Unfortunately, the summons was not served on the REC as stated and required by law. The law is very specific about the summons service.”
Citing Order 20, Rule 23 of the 2009 Federal High Court Rules, which provides that a summons shall be served personally unless the court orders that it be served by substitute means in extreme cases, he said: “the REC was ordered to be delivered with the subpoena and he is always in the office. My opinion is that the person who was served the summons is not the REC but Grace Onuoha, legal officer of the INEC”.
Going further, Okoli said, “I urge my Lords to set aside the service of the summons delivered to Grace Onuoha. There is no evidence that the REC evaded service and the court did not issue an order substituting service to Grace Onuoha.
Said summons has been returned to the court accompanied by a letter and an affidavit. We urge the honorable court to void the service of the summons to Grace Onuoha.”
Similarly, Chief Alex Iziyon, SAN, counsel for the defendants, held the same position.
In a counterargument, the petitioners’ attorney, Ejesieme, told the court that the letter and the affidavit returning the subpoena were delivered to him seconds ago.
In response to the entitlement points, Ejesieme said: “I will rely on the same Order 20 Rule 23 of the Federal High Court Rules 2009 and urge my Lords to make an order for a substituted service at Grace Onuoha.
“Furthermore, I will rely on a similar order issued by this court in EPT/003 where the court issued a similar order that the subpoena be served on the attorney.”
Objecting to the oral request made by Ejesieme, INEC’s lawyer, Okoli said: “Gentlemen, there is no affidavit in court to attest that the bailiff made any attempt to serve the summons on the REC before serving it on Grace Onuoha.
“I urge my Lords to dismiss the request made by the wise silk to the court. In EPT/003, there was an affidavit before the court issued a substitute service order from the Governor of Enugu State. There was an affidavit of non-notification, but in the present case there is no affidavit of non-notification.
“Section 47 of the First Schedule of the Elect Act of 2022, as amended, provides that no motion shall be filed after the pre-trial stage, except in extreme cases. I urge my Lords to reject the request for substituted service.”
Also responding, Iziyon told the court that the request is not grantable under the law.
He said: “An oral request is not accepted at this stage of the proceedings. The request must be made in writing and not orally.
Responding to earlier objections to the request for a substituted service, Ejesieme said: “I refer my Lords to Order 5 Rule (5) (b).
“By that provision, there is no need for any affidavit. This return was just made a few minutes ago.
“It was presented on July 14, 2023. If it had been delivered to me yesterday, I would have taken my position. There is an extreme condition given the circumstances in which we find ourselves.”
“Article 47 of the Electoral Law is inapplicable in this case. I refer my Lords to the case of Akeredolu V Abraham & anor, where the Supreme Court interpreted the provisions of Order 20, Rule 23 of the Federal Supreme Court Rules of 2009. I urge my Lords to grant our request,” he argued. .
In its ruling, the court, presided over by Judge KM Akano, held that the circumstances surrounding the return of the summons and the fact that the petitioners have only tomorrow, Sunday, which is July 16, 2023, to conclude its case, justifies the granting of the request.
It granted the superseded service order and ordered the summons to be delivered to Grace Onuoha, who is a legal officer at INEC’s Enugu office.
