The Governorship Election Petition Tribunal sitting in Enugu State, yesterday, ordered substituted service of a subpoena issued on the Resident Electoral Commissioner (REC) in the 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.
In its ruling, the tribunal chairman, Justice K. M. Akano, held that the circumstances surrounding the return of the subpoena and the fact that the petitioners have just today (Sunday), 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.
When the case came up yesterday, 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 .
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.
“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 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 an 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.”
