Enugu guber: Tribunal mandates substituted service on the REC due to the BVAS machines

The Resident Electoral Commissioner, or REC, in Enugu State, Dr. Chukwuemeka Chukwu, was served with a subpoena on Saturday, and the Governorship Election Petition Tribunal in Enugu State ordered substituted service.

The Enugu REC was ordered by a subpoena previously issued by the tribunal to present the BVAS voting machines used in the March 18 governorship election.

The Labour Party, LP and its candidate, Barr Chijioke Edeoga, requested the subpoena, and it was granted.

Barr Peter Mbah of the Peoples Democratic Party, PDP, is facing opposition from the party in his election.

The Enugu REC was served with a subpoena, and the petitioners’ attorneys, led by Valerie Azinge, SAN, who appeared alongside Chief Alexander Ejesieme, SAN, among others, called the tribunal’s attention to it and questioned whether or not the Enugu REC was present when the matter was called on Saturday.

At this time, Azinge requested that the proceeding be turned over to Ejesieme by the court.

If the subpoena witness was present in court, Ejesieme inquired with the attorney for the first respondent, INEC.

Hyacinth Okoli, an attorney for INEC, responded by stating: “Unfortunately, the subpoena was not served on the REC as stated and as required by law. Subpoena service is governed by very stringent legal rules.

Citing Order 20 Rule 23 of the Federal High Court Rules 2009, he stated: “The REC was ordered to be served with the subpoena and he is always in the office. Unless the court determines that same be served by substituted methods in severe situations. In my opinion, the REC was not the person on whom the subpoena was served, but rather Grace Onuoha, an INEC legal officer.

Okoli continued, saying: “I implore my Lords to halt the subpoena serving on Grace Onuoha. There is no proof that the REC avoided service, and the tribunal did not compel Grace Onuoha to be served in a different way.

“The aforementioned subpoena has been delivered back to the tribunal together with a letter and an affidavit. Grace Onuoha’s subpoena serving should be halted, we implore the honourable tribunal.

Chief Alex Iziyon, SAN, the respondents’ attorney, had a similar post.

In a counter argument, the petitioners’ attorney, Ejesieme, informed the tribunal that he had just received service of the letter and the affidavit returning the subpoena.

Ejesieme responded to legal points by stating, “I shall be relying on the same Order 20 Rule 23 of the Federal High Court Rules 2009 and I encourage my Lords to make an order for a substituted service on Grace Onuoha.

Additionally, I will be relying on an identical tribunal order from EPT/003, in which the tribunal directed that the subpoena be served on the attorney.

In response to the INEC counsel’s objection to Ejesieme’s oral request, Okoli said, “My Lords, there is no affidavit before the tribunal to certify that the bailiff attempted to serve the subpoena on the REC before delivering it on Grace Onuoha.

“I implore my Lords to dismiss the application submitted before the court by the learned silk. The court issued an order for substituted service on the governor of Enugu state in EPT/003 after receiving an affidavit in support of the request. Affidavit of non-service was present, but none is present in the current instance.

No motion may be filed after the pre-trial stage, with the exception of severe instances, according to Section 47 of the First Schedule of the Elected Act of 2022, as modified. My Lords, please reject the request for replacement service.

Iziyon responded as well, informing the tribunal that the law forbade the application from being granted.

At this point in the process, an oral application is not accepted, the man added. The application must be submitted in writing, not verbally.

I refer my Lords to Order 5 Rule (5) (b), Ejesieme remarked in response to the objections raised above regarding the request for a substituted service.

“According to that clause, no affidavit is required. Just a few minutes ago, this return was made.

The document was filed on July 14, 2023. I would have acted accordingly if it had been served upon me yesterday. Considering the situation we were in, it is an extraordinary state.

“In this situation, paragraph 47 of the Electoral Act is inapplicable. I refer my Lords to the Akeredolu v. Abraham & Anor decision, in which the Supreme Court explained how Order 20 Rule 23 of the Federal High Court Rules 2009 should be applied. I implore my Lords to approve our application,” he said.

The tribunal, presided over by Justice K. M. Akano, ruled that the application should be granted due to the circumstances surrounding the subpoena’s return and the petitioners’ limited time remaining to present their case, which ends tomorrow, Sunday, July 16, 2023.

The subpoena was to be served on Grace Onuoha, an INEC legal official at the Enugu office, and the court allowed the request for substituted service.