BVAS: Enugu Tribunal orders substituted service on REC
The Governorship Election Petition Tribunal sitting in Enugu State has ordered substituted service of a subpoena issued on the Resident Electoral Commissioner, REC, in Enugu State, Dr. Chukwuemeka Chukwu.
The tribunal had earlier issued a subpoena ordering the Enugu REC to bring before the court the BVAS machines used for the March 18 governorship election.
The subpoena was issued following an application made by Labour Party, LP, and its candidate, Barr Chijioke Edeoga.
The party is challenging the election of Barr Peter Mbah of the Peoples Democratic Party, PDP.
When the case came up on Saturday, the petitioners’ counsels led by Valerie Azinge, SAN, who appeared with Chief Alexander Ejesieme, SAN, among others, drew the attention of the tribunal to the subpoena issued on the Enugu REC and inquired as to whether or not he was in court.
At this point, Azinge asked the court to allow Ejesieme to take over the proceeding.
Ejesieme asked the counsel for the 1st respondent, INEC, whether the subpoena witness was in court.
In response, the INEC counsel, Hyacinth Okoli, said: “unfortunately, the subpoena was not served on the REC as stated and as required by law. The law is so specific about subpoena service.”
Citing Order 20 Rule 23 of the Federal High Court Rules 2009 which provides that a subpoena shall be served personally unless the court orders that same be served by substituted means in extreme cases, he said: “the REC was ordered to be served with the subpoena and he is always in the office. My submission is that whom the subpoena was served on is not the REC but one Grace Onuoha a legal officer with INEC.”
Going further, Okoli said: “I urge my Lords to set aside the service of the subpoena served on Grace Onuoha. There is no evidence that the REC evaded service and the tribunal didn’t make an order for substituted service on Grace Onuoha.
“The said subpoena has been returned to the tribunal in company of a letter and an affidavit. We urge the honourable tribunal to set aside the service of the subpoena on Grace Onuoha.”
Similarly, Chief Alex Iziyon, SAN, counsel to the respondents held same position.
In a counter argument, the petitioners’ lawyer, Ejesieme, told the tribunal that the letter and the affidavit returning the subpoena was served on him a few seconds ago.
Replying on points of law, Ejesieme said, “I will be relying on the same Order 20 Rule 23 of the Federal High Court Rules 2009 and I urge my Lords to make an order for a substituted service on Grace Onuoha.
“Also, I will be relying on a similar order made by this tribunal in EPT/003 where the tribunal gave a similar order that the subpoena be served on the counsel.”
Objecting to the oral application made by Ejesieme, the INEC counsel, Okoli said, “My Lords, there is no affidavit before the tribunal to attest that the bailiff made any attempt to serve the subpoena on the REC before serving it on Grace Onuoha.
“I urge my Lords to discontinue the application made by the learned silk to the court. In EPT/003, there was an affidavit before the court made an order for a substituted service on the governor of Enugu state. There was affidavit of non-service, but in the instant case, there is no affidavit of non-service.
“Section 47 of the First Schedule of the Elected Act 2022 as amended provided that no motion shall be moved after pre-trial stage except on extreme cases. I urge my Lords to refuse the application for substituted service.”
Responding also, Iziyon told the tribunal that the application is not grantable under the law.
He said, “An oral application at this stage of the proceeding is not accepted. The application should be made in writing and not orally”.
Responding to the above objections on the application 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 filed on the 14th day of July 2023. If it was served on me yesterday, I would have taken my position. There is an extreme condition giving the circumstances that we found ourselves in.”
“Paragraph 47 of the Electoral Act 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 High Court Rules 2009. I urge my Lords to grant our application,” he argued.
In its ruling, the tribunal, chaired by Justice K. M. Akano held that the circumstances surrounding the return of the subpoena and the fact that the petitioners have just Sunday, which is the 16th day of July, 2023, to conclude their case, warrants the granting of the application.
It granted the order for substituted service and ordered that the subpoena be served on Grace Onuoha who is a legal officer in the Enugu office of INEC.
NP/N.O
