Senator Dino Melaye (All Progressives Congress – Kogi West) has lodged an appeal at the Supreme Court against the March 16, 2018 judgment of the Court of Appeal, Abuja, which affirmed the power of the Independent National Electoral Commission (INEC) to conduct a referendum for the purpose of recalling a legislator unhindered.
Melaye, in a notice of appeal dated April 3, 2018, filed by his lawyer, Mike Ozekhome (SAN), urged the Supreme Court to among others, set aside the Court of Appeal judgment, which upheld an earlier judgment by Justice Nnamdi Dimgba of the Federal High Court, Abuja.
INEC had in July last year, on receiving a petition from some registered voters from Melaye’s constituency, requesting his recall on grounds of non-performance, wrote to notify him about the petition and further steps it intended to take.
On learning about the petition, Melaye filed fundamental rights enforcement suit before the Federal High Court, Abuja, accusing INEC of not affording him fair hearing by not serving him with a copy of the petition to enable him respond.
Before the suit could be heard, Justice John Tsoho (also of the Federal High Court, Abuja) entertained an ex-parte application from Melaye, and granted it, restraining INEC from taking any further steps in relation to the petition.
Justice Dimgba, who later heard the substantive suit, dismissed it for being unmeritorious. The judge, in his judgment, held that Melaye’s suit was “hasty, premature and presumptuous.”
Melaye appealed to the Court of Appeal, which, in a unanimous judgment of a three-man panel on March 16, 2018, dismissed the appeal for lacking in merit.
Justice Tunde Awotoye, who read the Court of Appeal’s lead judgment, upheld the decision of the Federal High Court and said the trial court ought not to have wasted time hearing Melaye’s suit, but should have struck it out for not disclosing any cause of action.
Justice Awotoye said: “Such statutory bodies like the INEC should be allowed to exercise their statutory powers without interference by the court. The appellant cannot claim that his right of fair hearing was infringed upon. His right to fair hearing has not been violated since INEC, as a statutory body, is not a tribunal neither is it a court of law.
“The appellant has not disclosed any cause of action and the suit ought to have been struck out by the trial court for not disclosing any cause of action. I agree with the decision of the trial court.
“Ordinary, it ought to have struck out the suit for non-disclosure of cause of action. This is because where there is no cause of action, the court has no jurisdiction to hear the suit. Having resolved all the issues in the appeal against the appellant, I hereby struck out the suit and dismiss the appeal,” Justice Awotoye said,
It is this decision of the Court of Appeal that Melaye now seeks to challenge at the Supreme Court with his notice of appeal of seven grounds.
As against the finding by the Court of Appeal that INEC was still within time to conduct Melaye’s recall process, the Senator wants the Supreme Court to hold otherwise.
Melaye wants the Supreme Court to, among others, declare that the statutory 90-day period for INEC to conduct a recall process, provide in Section 69(b) of the Constitution, having elapsed by effluxion of time on September 23, 2017, INEC can no longer validly proceed on the basis of the petition for his recall, presented on June 23, 2017.
He equally wants an order of perpetual injunction, restraining INEC from commencing or further proceeding with the process of acting on the petition presented to it by his supposed constituents.