The Governorship Election Petition Tribunal sitting in Enugu State, on Saturday, ordered substituted service of the document on the Enugu Resident Electoral Commissioner, Dr Chukwuemeka Chukwu, in response to dodging service of a subpoena as ordered by the tribunal.
Remember that the tribunal issued a subpoena ordering the Enugu REC to give Labour party governorship candidate, Chijioke Edeoga, access to BVAS machines used in the state’s March 18 governorship poll.
When the matter was resumed on Saturday, the petitioners’ counsels, led by Valerie Azinge, SAN, who appeared alongside Chief Alexander Ejesieme, SAN, among others, called the tribunal’s attention to the subpoena issued to the Enugu REC and inquired whether he was in court.
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Ejesieme who was asked by Azinge to conduct proceedings, asked the counsel to the 1st respondent, INEC, whether the subpoenaed 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.”
Okoli further submitted: “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.
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“The said subpoena has been returned to the tribunal in the company of a letter and an affidavit. We urge the honourable tribunal to set aside the service of the subpoena on Grace Onuoha.”
Chief Alex Iziyon, SAN, counsel to the respondents, the Peoples Democratic Party, had the same position.
However, the petitioners’ lawyer, Ejesieme, told the tribunal that the letter and affidavit returning the subpoena were just served on him.
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.”
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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 discountenance 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 the 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 the pre-trial stage except in extreme cases. I urge my Lords to refuse the application for substituted service.” Iziyon also aligned with this submission, saying “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 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.
The tribunal, presided over by Justice K. M. Akano, said in its finding that the circumstances surrounding the return of the subpoena, as well as the fact that the petitioners have just tomorrow, Sunday, July 16, 2023, to conclude their case, warrant the grant of the application.
It issued the order for substituted service and directed that the subpoena be served on Grace Onuoha, an INEC legal official in Enugu.
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