Senator Dino Melaye (All Progressives Congress, Kogi West) has urged the Court of Appeal in Abuja to set aside the judgement, allowing the Independent National Electoral Commission (INEC) to proceed with the process to recall him.
His request is contained in a notice of appeal filed Wednesday by his lawyer, Mike Ozekhome (SAN).
Melaye faulted the decision by Justice Nnamdi Dimgba of the Federal High Court, Abuja, dismissing his fundamental rights enforcement suit and giving INEC the nod to proceed with Melaye’s recall process
In his first ground of appeal, Melaye contended that the trial judge erred in law by holding that the petition presented to INEC for his recall was valid, even when the petition exhibited by INEC was not signed by more than half of the registered voters in the plaintiff’s appellant’s constituency as is required by section 69 of the 1999 Constitution.
Melaye argued that the petition presented to INEC “by the purported constituents and exhibited before the court as Exhibit lNEC 1, was only signed by three persons, which number is less than the half of the registered voters” in the constituency “as provided for by section 69 of the Constitution”.
He said “a mere statistical analysis and general summary for the recall of Senator Dino Melaye (Exhibit DM13) done by INEC itself” and wholly relied upon by the trial court “to hold that the petition was valid, can neither replace nor take place of the petition itself, which was tendered by INEC as exhibit”.
Melaye also argued that the trial judge was in error when he held that the counting of the 90 days provided for by section 69 of the Constitution was halted in June 23, 2017, when theplaintiff/appellant commenced this action and subsequently ordered that the period would continue to run from September 11, 2017, the date of the judgment of the trial court” was delivered.
He said contrary to the judge’s finding, “the time fixed by the Constitution for the doing of an act cannot be extended or expanded or elongated or in any way enlarged regarding what is to be done where not done within the time so fixed”.
Melaye said such time fixed by the Constitution, “lapses since the court has no jurisdiction to extend the time fixed by the Constitution for the doing of an act”.
He also argued in another ground of appeal that Justice Dimgba was wrong “by failing to consider the notice to produce issued on INEC to produce the petition for the recall of the plaintiff/ appellant and not invoking the provisions of section 167(d) of the Evidence Act, in the face of failure of the INEC to produce the purported petition allegedly signed by the plaintiff’s/appellant’s constituents despite service of a notice to produce on it”.
Melaye said instead of doing this, the judge relied “on mere statistical analysis prepared by INEC itself to validate a petition which was invalid on its face.”
Identifying his perceived errors In the judgment, Melaye stated that INEC, in its counter-affidavit to this originating summons, “exhibited the purported petition for the recall of the plaintiff which was signed by only three persons, a number grossly less than the number as required by the Constitution”.
He added that he issued and served on INEC a notice to produce the petition for the recall as signed by more than half of the registered voters in the plaintiff’s constituency, “which it failed to do.”
“Notwithstanding the notice to produce INEC failed, refused and neglected to produce the said petition before the court.
“The court failed to invoke the provisions of section 167(d) of the Evidence Act to the effect that failure by INEC to produce the said petition meant that such petition, if it were produced, would have been adverse to the interest of lNEC,” he said
Melaye also argued that the judge erred in law “when he failed to act on uncontroverted facts in the plaintiff’s/appellant’s affidavit in support of his Originating Summons and also his further affidavit in opposition to the defendant’s/respondent’s affidavit in opposition to the plaintiff’s originating summons.”
Justice Dimgba had while directing INEC to proceed with the signatures verification exercise, also ordered the commission to issue an amended recall timetable giving the senator a minimum of two weeks to equip and be able defend himself against the recall process.
The judge ordered that the amended timetable, alongside the copies of the petition, the list of signatures and the list of the names of the voters who signed in support of the recall petition, be served on Melaye.