Justice Nnamdi Dimgba struck out the motion after INEC’s lawyer, Mr. Yunus Ustaz (SAN), announced its withdrawal in court on Thursday.
The judge also directed that all issues pertaining to the case should thereafter be taken to the Court of Appeal.
He noted that since Melaye’s appeal against the court’s September 11 judgment of the court had been entered at the Court of Appeal, all pending applications, including the ones filed by Melaye for stay of execution of the verdict, should be taken to the Court of Appeal.
INEC had on September 15, filed the ex parte motion seeking substituted service of the recall petition on Melaye, following alleged refusal of senator to accept service of the petition and other accompanying documents as earlier ordered by the court on September 11.
Ustaz also maintained on Thursday that Melaye had been “dodging” service, as an attempt by the INEC to serve Melaye during the Senate’s plenary on Tuesday also failed.
The INEC’s lawyer had earlier, on Thursday, urged Justice Dimgba to hear the ex parte motion, but Melaye’s counsel, Mr. Nkem Okoro, had opposed the hearing on the grounds that the court no longer had jurisdiction to hear any application concerning the case since his client’s appeal against the September 11 judgment of the court had been “entered” at the Court of Appeal.
But the INEC’s lawyer later, in the course of the proceedings, withdrew the motion after the judge raised some questions about the propriety of the ex parte motion filed after the court had finally disposed of the case by delivering judgment on September 11.
Justice Dimgba had noted that Order 6 of the Federal High Court Rules under which INEC filed the ex parte motion presupposed that there was a pending case.
The judge explained that the judgment having been delivered in the case filing an ex parte motion was not the appropriate means for enforcement of the judgment.
Ustaz agreed with the judge and withdrew the motion.
It was then struck out by the judge.
Justice Dimgba had in his judgment delivered on September 11 dismissed Melaye’s suit challenging the validity of the recall process, but made it a pre-condition for the exercise to commence that the electoral body must serve the senator with the recall petition and accompanying documents, including the signatures of the constituents calling for his (Melaye’s) recall.
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