Hon. (Chief) Olusola Oke V. Sen. H. O. Ehinlanwo & Ors (2007)

LawGlobal-Hub Lead Judgment Report

CHIDI NWAOMA UWA, J.C.A.

This is an appeal against the judgment of the Federal High Court, Abuja, delivered on the 18th day of April, 2007, hereafter called the “trial Court”, The then applicant SENATOR H. O. EHINLANWO, in his Originating Summons (“the summons”) dated March 16, 2007 sought the under mentioned questions for the determination of the Court:-

(1) Whether the Peoples Democratic Party (PDP) can substitute the plaintiff with another from contesting for the office of the Ondo South Senatorial Zone in the forth coming Senatorial election?

(2) Whether the plaintiff can be substituted for the office of the Senatorial Seat in the Ondo South Senatorial Zone after having been cleared by INEC during its screening exercise.

The 1st Respondent (then applicant) in the originating summons sought the following reliefs:

(a) A declaration that the Peoples Democratic Party has no power to remove the name of the Applicant as the candidate on the platform of PDP for the Ondo South Senatorial seat having been cleared by INEC.

(b) A declaration that the substitution of the applicant’s name with that of Chief Olusola Oke having been cleared by INEC was wrongful

(c) A declaration that the applicant is the party rightful candidate to contest for the office of Senator in the Ondo South Senatorial Zone in the forth coming election.

(d) An order that the name of the applicant be restored as the sole candidate on the platform of the PDP for the Ondo South senatorial Seat.

(e) An order restraining the 1st respondent from further presenting or recognizing Chief Olusola Oke or any other candidate than the applicant to contest for the office of the Senatorial Seat in the Ondo South Senatorial Zone in the forth coming election on the platform of the PDP.

The case before the trial Court was listed and heard by the trial Court on March 26, 2007 and adjourned to March 29, 2007 after which the Appellant got wind of the matter and subsequently applied to be joined as a respondent via an application dated March 29, 2007.

At the trial Court the originating summons of the plaintiff (1st Respondent) was supported by a five (5) paragraph affidavit deposed to by one Emmanuel Mgor, a litigation clerk in the Law Office of learned Counsel to the Applicant, Karina Tunyan & Co, filed on 16th March, 2007, a further affidavit of seven (7) paragraphs deposed to by the same deponent with documents attached as Exhibits A, B1-B2 and C filed on March 26, 2007 and also filed on 16th April, 2007 was a four (4) paragraph further and better affidavit deposed to by one Jibrin Habu, a litigation clerk in the law Firm of D. D. Dodo & Co, plaintiffs lead Counsel with documents attached as Exhibits Senator 1 – Senator 6.

On the same day 16th April 2007, the matter came up for hearing with an application for abridgment of time. The Court made an order for accelerated hearing, due to the urgency of the matter, gave directions for

MISSING PAGE 4 & 5

(4) Whether the proceedings and judgment of the trial Court do not constitute a fundamental violation of the appellant’s right to fair hearing, and if so, whether they are not liable to be set aside.

(5) Whether the trial Court was right to have set up and made a case for the 1st Respondent in its judgment different and inconsistent with the case presented before the Court by the 1st Respondent.

(6) Whether the substitution of the appellant by the 1st Respondent was valid and proper and if not, whether the appellant and the 2nd respondent were right to have substituted the substitution.

The 1st Respondent filed his brief on 31/5/07, deemed on 4/6/07, and adopted the issues as formulated by the 1st Appellant except issue six (6).

The 2nd Respondent (PDP) in their brief dated 23/5/07 and filed the same day adopted the six issues as formulated by the 1st Appellant.

The 3rd Respondent (INEC) filed their brief of argument on 23/5/2007, and adopted the six (6) issues for determination as formulated by the appellant, as they affect the 3rd respondent.

The 1st Respondent on the same 31/5/07 that he filed the 1st Respondent’s Brief of Argument in response to the 1st Appellant’s Brief filed a Notice of Preliminary Objection along side his brief, under Order 3 Rule 15 of the Court of Appeal Rules.

The Preliminary Objection reads thus:

“That Grounds 3, 4, 7, 8, 9, 12 and 13 contained in the 1st Appellant’s Amended Notice of Appeal dated 4th May, 2007 are incompetent and should therefore be struck out, AND TAKE FURTHER NOTICE that the grounds of the said objection are as follows;

1. ONLY Ground 11 of the 1st Appellant’s Amended Notice of Appeal deals with fair hearing in this appeal. We shall therefore by way of preliminary objection be applying that Grounds 3, 4, 8 and 13 be struck out by the Honorable Court as having not been covered by any of the issues so far canvassed in this appeal.
2. The said Grounds of Appeal do not relate to the decision of the Court below and complained against by the 1st Appellant as the Court did not make any pronouncement or finding of fact in respect of the complaints.
3. The “illegal” substitution of the 1st Appellant was never raised as an issue nor canvassed In the written address of the 1st Appellant and therefore constitutes a new and different case.
4. Leave of this Honourable Court ought to be sought and obtained before the 1st Appellant can argue the fresh Issues which were not canvassed in the lower Court.”

The learned senior counsel for the 1st Respondent D. D. Dodo (SAN) objected to issues 4 and 6 in the Appellant’s Brief. The 1st Respondent contended that Grounds 3, 4, 7, 8,12 and 13 are not covered by any of the issues formulated for determination and that they do not arise from the judgment of the trial Court. Also Grounds 7, 9 and 10 do not arise from the judgment of the trial Court and should therefore be discountenanced, that the issue of “illegal” substitution of the Appellant by the 1st Respondent did not arise from and was not raised at the trial Court.

In response to the preliminary objection, the Appellant in his reply brief dated and filed on 6/6/07 incorporated his answer in the reply brief, argued that Grounds 3, 4, 8 and 13 are covered by Issue 4 of the Appellant’s brief, which dealt with the right to fair hearing. Reference was made to paragraph 3, page 236 of the record, pages 240 – 241 of the record, pages 236 – 237 and page 243 of the record, paragraph 3. Further, that grounds 7, 9 and 10 of the grounds of appeal all arose from the judgment of the trial Court, reference was made to pages 245 – 247 and pages 236 – 237 of the Record.

The learned appellant’s counsel in his reply brief further argued that the issue of “illegal” substitution of the Appellant by the 1st Respondent was raised before the trial Court and highlighted paragraph 5 at page 137 of the record, paragraphs 13 and 14 at page 156 of the Record. Paragraph 5 at pages 220 – 224 of the Record, Pages 232 – 233, page 326 of the Supplementary Record and page 241 of the record.

I have looked at the submissions of both counsel in respect of the preliminary objection raised by the 1st Respondent in respect of issues 4 and 6 as formulated by the Appellant, without going into too much unnecessary detail I adopt the opinion of the Courts in recent times in avoiding technical justice and chasing shadows rather than resolving issues that will determine either way once and for all, the real issues between the parties.

In the present case the important thing is, the Appellant either succeeds in establishing his issues as formulated or he fails, this Court would be slow in doing away with these issues prematurely without going into the merits.

In any case I am of the opinion that Issue 4 of the Appellant’s Brief dealt with fair hearing and covered Grounds 3, 4, 8 and 13.

In respect of Issue 6, I am of the view that the issue of “illegal” or non-nomination of 1st Respondent was directly in issue before the trial Court and it is not being raised newly before this Court for which leave of the Court would be required. Indeed, this is the crux of the main appeal.

In conclusion, I find no basis for this preliminary objection and accordingly dismiss the objection.

In the main appeal the Appellant formulated six (6) issues which were adopted by the Respondents which I will rely on in determining this appeal.

Issue One

Whether the trial Court was right to have assumed jurisdiction over the case of the 1st Respondent (Ground 1)

The learned counsel for the Appellant E. Adegboruwa, Esq. submitted that this case was not taken to the trial Court by due process, he submitted that the nature of the 1st Respondent’s case is not such that could be commenced or prosecuted via the procedure of originating summons in view of the fact that virtually all the facts are in issue and contested, that it should have been by way of writ of summons. That all the facts alleged were denied by the appellant and the 2nd and 3rd respondents, and that some of the documents relied upon by the parties and the trial Court were challenged either as being fictitious or forged. He submitted that there is a substantial dispute since the various affidavit/evidence before the Court were conflicting and contradictory. Learned Counsel referred to the cases of Adebayo v. Doherty (1968) NWLR 24; NBN V. Alakija (1978) All NLR 231; The learned appellant’s Counsel submitted that where an improper procedure is adopted by a plaintiff, the Court will not have the jurisdiction to adjudicate on it and referred to the case of Madukolu v. Nkemdilim (1962) SCNLR 341. The Learned appellant’s Counsel urged this Court to allow the appeal on this issue alone.

In response to the 1st appellant’s submissions on issue one, the Learned Senior Counsel D. D. Dodo (SAN) submitted without conceding that even if the procedure for commencement of the case by the appellant was improper, it is an irregularity and does not touch the jurisdiction of the Court to hear the matter and relied on the Court of Appeal decision in Dapialong v. Lalong (2007) 5 NWLR (Pt 1026) P. 199 at P. 212 Akaahs J.C.A. Further that the challenge of the mode of commencement of the action in challenging the jurisdiction of the Court was done to delay this matter from being heard on the merits. He argued that all the conditions specified in Madukolu’s case (supra) cited by the appellant in his brief were satisfied. The Learned Senior Counsel argued that assuming without conceding that the affidavit evidence are conflicting, where there is sufficient material, these could be made use of without recourse to oral evidence, which Learned Senior Counsel proffered was proper and within the Court’s jurisdiction to do so. Learned Senior Counsel urged this Court to find for the 1st respondent on this issue and dismiss the appellant’s contention.

In reply, the learned Counsel to the appellant argued that the issue of the appropriate mode of commencement of an action is not an irregularity, but rather one of initiating the action through due process of, law and also that of fulfilling a condition precedent. Madukolu V. Nkemdilim (supra) and Atolagbe v. Awuni (1997) 4 NWLR (Pt 522) 123.

The learned counsel for the 3rd Respondent (INEC) Ikechukwu Maledo, Esq. adopted the six (6) issues as formulated by the learned senior counsel to the appellant. In respect of issue one, he submitted that from the affidavits filed by the parties that there was material conflict in the 1st Respondent’s averments on one hand and that of the appellant and 2nd and 3rd Respondents on the other which could only be resolved by calling oral evidence, he urged the lower court to order pleadings for a proper adjudication of the case, he submitted that the trial court failed to make a pronouncement on this issue.

He relied on Madukolu v. Nkemdilim (1962) All NLR; APC Ltd v. NDIC (NUB Ltd) (2006) 15 NWLR (Pt 1002) 404 432.

The learned counsel argued that for instance, the 1st Respondent made an allegation of fraud against the 3rd respondent which the latter denied. The 1st Respondent alleged in paragraph 2 (d) that Exhibit Senator 4 was a forgery and that it was smuggled into the office of the 3rd respondent, that this was enough for the court to have ordered pleadings as envisaged by Order 2 Rule 2 (1) of the Federal High Court (Civil Procedure) Rules 2000, and the trial court having failed to do so denied the 3rd respondent the opportunity to defend this suit. Learned counsel urged this court to order pleadings be filed suo moto for the court to have jurisdiction to properly adjudicate on the issues between the parties. He urged this court to hold that the entire proceeding is a nullity since the court acted without jurisdiction, and urged us to allow the appeal on this ground.

Issue Two

Whether the findings of facts made by the trial Court were not perverse and liable to be set aside in the face of the evidence before the Court. (Grounds 2 & 14).

The learned appellant’s counsel submitted that the findings of facts by the trial Court were not borne out of the evidence before it, thus the findings of facts are perverse and liable to be interfered with and set aside by this Court, and cited the cases of Abisi v. Ekwealor (1993) 6 NWLR (Pt. 302) 643 at 668. and Atolagbe v. Shorun (1985) 1 NWLR (Pt 2) 360.

The learned counsel for the appellant argued that the Learned trial Court’s finding on the letter dated 19/2/07 from Ondo State Government Exhibit A to the Further and Better Affidavit of the 1st Respondent dated 26/3/06 being evidence of intending substitution and that it lacked credence, that it confirmed and settled the issues as to who was first nominated between the 1st Respondent and the Appellant, the learned Counsel submitted is perverse. Further he argued that the trial Court did not make a proper finding on Exhibit A, which was furnished by the 1st Respondent. He argued that Exhibit A could not have been the source of substitution and should not have treated Exhibit A as evidence of intending substitution when substitution is alleged to have taken place earlier i.e. 5/2/07.

Further that the trial Court making a finding that the 1st Respondent was originally nominated and sponsored by the 2nd Respondent in compliance with S. 32 of the Electoral Act 2006 is not shown in any of the affidavit deposed on behalf of the 1st Respondent, showing compliance with S. 32 of the Electoral Act 2006, in other words that the trial Court made out a case of compliance with the said S. 32 for the 1st Respondent. He argued that the trial Court ignored and failed to utilize Exhibit SOLA 1 (Affidavit verifying the Particulars of the Appellant) referred to in paragraph 4 of the Further and Better Counter affidavit of the appellant dated 18/4/07 (PP. 165 – 173 of the Records) which showed that the appellant complied with S. 32 of the Electoral Act not the 1st Respondent as wrongly found by the trial Court. The 3rd Respondent also confirmed the receipt of Exhibit SOLA 1 in his Counter Affidavit. Further that the inconsistent and contradictory evidence furnished by the 1st Respondent weakened the case of the 1st Respondent and should have been rejected by the trial Court. See Arjay Ltd v. A.M.S. Ltd (2003) 7 NWLR (Pt 820) 577 at 588. He argued that the Court should have preferred and relied on the more consistent affidavit/evidence of the appellant.

In response, the learned senior Counsel for the 1st Respondent argued that the findings of the trial Court were not perverse, and should not be interfered with. He argued that the judgment of the lower Court was based on the supporting documents from both parties which speak for themselves, which should be preferred to averments raised by the parties in this suit.

The learned Senior Counsel invited this Court to examine closely the documents presented on behalf of the parties for consistency and corroboration of the facts alleged by either side.

In respect of the 1st Respondent the following documents were enumerated:

(a) Exhibit A – letter dated 19th February, 2007 (on Page 8 of the record of Appeal.)

(b) Exhibit B1 – PDP Electoral Guidelines (Page 9 – 15.)

(c) Exhibit B2 – Extract from PDP Constitution – (Page 16 – 17.)

(d) Exhibit C – Form E. C. 4B (V) – (Page 18 -37.)

(e) SENATOR 1- Party ID card – (Page 78 and 80.)

(f) SENATOR 2 – PDP List of candidates for the Senatorial Election – (PP79/81 – 83.)

(g) SENATOR 3 – CTC of Form E. C. 4B (V) – (PP 84 – 103.)

(h) SENATOR 4 – Letter dated 5th February, 2007 – (P. 104)

(i) SENATOR 5 – Form CF. 004A (P. 105.)

(j) SENATOR 6 – INEC form showing submissions of Olushola Oke’s Candidature – (P. 106.)

He argued that the above documents are consistent with the case of the 1st Respondent as per his originating summons, Affidavits, and the documentary evidence, also show corroboration.

The learned Senior Counsel highlighted the documents presented on behalf of the appellant.

(a) Exhibit A Series – relevant documents relating to the PDP primaries for Ondo South Senatorial Seat. (PP. 127 – 133.)

(b) Result of Primaries election (P.134.)

(c) Provisional Clearance Certificate dated 29/11/07. (P. 135.)

(d) SOLA 1 – Form C. F. 001 PP. (168 – 173.)

(e) SOLA 2 – A PDP Leadership Bond – (PP. 174 – 180.)

(f) SOLA 3 – Form E. C. 4B (V) (PP.181 – 196.)

(g) SOLA 4 – Extract of PDP Constitution (PP. 197 – 200.)

(h) SOLA 5 – PDP Membership Card – (P. 201.)

The learned senior counsel for the 1st respondent argued that the documents relied upon by the Appellant at the lower Court are not relevant to the issues for determination before the Court and/or are inconsistent with the averments made in the affidavits. He argued that the documents produced by the Appellant (reproduced above) failed to show that he was originally nominated by the party and failed to show that the 2nd Respondent (PDP) complied with S. 32 (1) of the Electoral Act, 2006. On the other hand that the 1st Respondent through Exhibit SENATOR 2 has shown compliance with S. 32 (1) of the Electoral Act. He argued that the burden is on the Appellant to prove his original nomination and cited the following cases: Dabo v. Abdullahi (2005) 7 NWLR (Pt 923) P. 181 K-206; Tanarewa (Nig). Ltd v. Arzai (2005) 5 NWLR (Pt 919) P. 593 at 630; Kate Ent. Ltd v. Daewoo (Nig.) Ltd (1985) 2 NWLR (Pt. 5) P. 116.

The learned senior counsel further argued that the burden shifted back to the Appellant, to prove that his name was submitted to INEC in the first place, he said the appellant failed to do so. He argued that the live issue before the lower Court was whether the substitution of the 1st Respondent (and not the appellant) was lawful. He argued further that under s. 32 (1) of the Electoral Act 2006 the requirement is that every political party shall furnish not later than 120 days before the date for a general election submit to the 2nd Respondent a list of the candidates the party proposes to sponsor at the election, he submitted that this was the first in a sequential list of requirements and that the onus is on the appellants to prove compliance with S. 32 (1) of the Electoral Act.

The learned senior counsel argued that the lower Court’s judgment was decided on the basis of available documents and stressed that Exhibit A only proved the intention to substitute the 1st Respondent with the Appellant by the 2nd Appellant (PDP). That the decision would have been perverse if the conclusion or finding of the trial Court is not supportable by the evidence on record. See Iwuoha v. NIPOST (2003) 8 NWLR (pt. 822) P. 308 at 343 – 344 SC.

That the conclusions were based on the findings of facts by the Court borne out by the evidence before it. He argued that by Exhibit SENATOR 2. The 1st Respondent’s name was submitted first by the 2nd Appellant (PDP) to the 3rd Respondent (INEC).

In response to issue two, the learned counsel for the 3rd respondent, Ikechukwu Maledo, Esq. submitted that from the affidavit of all the parties it was clear that the appellant was the original candidate nominated by the 2nd respondent for the Ondo South Senatorial District and that it was the 1st Respondent who effected the change of the appellant’s name from the list originally submitted to the 3rd Respondent and that the trial court failed to look into whether the substitution of the appellant done by the 1st Respondent met the requirement of the law and also failed to look into who was originally nominated by the 2nd respondent.

Further that in the 3rd Respondent’s affidavits he deposed that the appellant was the authentic candidate nominated by the 2nd Respondent that the 1st Respondent did not attach any proof of clearance by the 3rd Respondent to contest, lending evidence to the 3rd Respondent’s averment that the appellant was the duly nominated candidate for the 2nd defendant, yet the trial Court held that the 1st Respondent was the candidate nominated by the 2nd Respondent. Finally on this issue learned Counsel submitted that the judgment of the trial Court is against the weight of evidence before the Court and urged this Court to set the judgment aside.

Issue Three

Whether the facts and circumstances of the cases of Ararume v. INEC and Ugwu v. Ararume are not different and distinguishable from those of this case and whether the trial Court was right to have applied and relied on them against the appellant the way it has done. (Ground 12)

In this issue, the appellant contended that the trial court wrongly applied the principles of law stated in the cases of Ararume v. INEC and Ugwu v. Ararume APPEAL NO. CA/A/49/07 against the Appellant. The learned counsel distinguished the situation in Ararume’s case, in that Ararume emerged as winner at the Governorship primaries conducted by the PDP, Senator Ararume’s name was consequently forwarded to INEC by the PDP as the Governorship candidate in compliance with S. 32 (1) and (2) of the Electoral Act, subsequently, the PDP forwarded Ugwu’s name to INEC, which led to Ararume’s action challenging the step taken by the PDP. At the time there was an interim injunction restraining the Respondents from taking any steps towards changing or substituting the name of Ararume as PDP Governorship candidate. INEC entered an undertaking to maintain the status quo and not to act on the application for substitution. The trial court eventually declined to grant the reliefs sought by Ararume, after which he appealed to this court that reversed the decision of the trial court.

By the above decision the learned counsel submitted that S. 34 of the Electoral Act is meant to protect the owner of a valid mandate lawfully secured in contest, party primaries, therefore that a winner of a contest should be allowed to enjoy the fruits of his victory. He submitted that the trial Court’s decision means that S. 34 protects any mandate, whether or not it was improperly proved, as in this case where the appellant won in the primaries. The trial Court’s decision means there is no remedy for the owner of a valid mandate secured at the primaries while the PDP (2nd Respondent) is of the opinion that there cannot be a nomination without a valid mandate secured at the primaries.

The learned counsel submitted that if Ararume’s case is to be properly applied, nomination procured improperly should not stand. He argued that the result of the primaries was before the Court, in which the appellant scored 2024 votes while the 1st Respondent scored 323. The learned Counsel distinguished the case of Ararume v. INEC from this case and urged this Court to apply it in favour of the appellant. I will come to the details of the defense in the two cases later.

He argued that the appellant should benefit from Ararume’s case not the 1st Respondent. Learned Counsel to the appellant urged this Court to agree and hold that the trial Court wrongly applied the decision in Ararume’s case and urged us to invoke S. 16 of the Court of Appeal Act, to apply the said decision correctly by invoking the principles and ratio in favour of the appellant, he urged us to allow the appeal on this issue alone.

In response to issue three, the learned senior counsel D. D. Dodo (SAN) submitted that the decision in Ararume’s case cannot apply in this case. He argued that on the interpretation of S. 34 of the Electoral Act that a party wishing to substitute candidates after such a candidate has been sent to INEC must give cogent and verifiable reasons for the change. He placed reliance on Ugwu vs. Ararume SC/63/2007 per Niki Tobi, JSC. He argued that the trial Court rightly found that the name of the 1st Respondent had been forwarded to the 2nd Respondent (INEC) by the 2nd Appellant (PDP) through Exhibit SENATOR 2 which the trial Court found was in compliance with S. 32 (1), therefore held that the 1st Respondent’s nomination complied with S. 32 (1) and that any substitution of the 1st Respondent (See Exhibit SENATOR 4) would require to have cogent and verifiable reasons for it to be lawful. The learned Counsel argued that Exhibit SENATOR 4 was an attempt at substitution and gave the reason of “without enough information” as the reason for substituting the 1st respondent, and placed reliance on the cases of Ararume v. INEC decided by this Court and Ugwu v. Ararume confirmed by the Supreme Court. The learned Senior Counsel argued that this Court not being a Court of first instance cannot protect the mandate the appellant says he secured at the 2nd appellant’s primaries, which the appellant alleges was supported by the 1st respondent. He argued that the appellant should have counter claimed in the lower Court to challenge his purported supplanting, therefore that this is not the scenario in which this Court could invoke its power to grant a claim never made in the lower Court by the 1st appellant.

The learned Counsel for the 3rd respondent in his brief adopted the arguments in respect of the third issue as argued by the appellant’s learned Counsel.

Issue Four

Whether the proceedings and judgment of the trial Court do not constitute a fundamental violation of the appellant’s right to fair hearing, and if so, whether they are not liable to be set aside. (Grounds 3, 4, 8, 11 and 13).

The learned appellant’s Counsel submitted that his rights to fair hearing were grossly violated by the proceedings and judgment of the trial Court. The learned Counsel highlighted S. 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 which is on right to fair hearing. He argued that by the reliefs sought by the 1st Respondent in the trial Court especially paragraphs (b) and (d) the appellant should have been joined as a necessary party to the suit of the 1st Respondent being the person affected by any decision to be reached therein. He argued that the trial Court should have given the appellant reasonable time to appeal/or defend, reliance was placed on S. 36 (6) of the 1999 Constitution and the case of National Union Railway men v. Nigerian Railway Corporation (1996) 9 NWLR (Pt. 473) 490 and Obeta v. Okpe (1996) 9 NWLR (pt 473)301.

The learned counsel for the appellant argued that he was not given adequate time to present his case and to respond to the claims of the 1st respondent. He argued that the trial Court first sat on this case on 26/3/07 and adjourned to 29/3/07. On becoming aware of the suit the appellant applied to be joined on 29/3/07. On subsequent adjournments 3/4/07 and 10/4/07 the Court did not sit, on 17/4/07 when the trial Court resumed sitting, the appellant was joined, the matter was adjourned and heard the next day 18/4/07. On 16/4/07 the 1st respondent’s counsel D. D. Dodo & Co. had filed on behalf of the 1st respondent a Further and Better Affidavit with several Exhibits, these were served on the appellant on 17/4/07 after which the Court directed the appellant to respond to the further and better affidavit within one hour, and that the appellant was not in Court at the time the order was made, and that the application for adjournment was turned down. He argued that there was no time for the appellant to approach the 3rd respondent (INEC) to obtain Certified True Copies of his relevant papers as 1st respondent had done, the matter having been fixed for the next day 18/4/07. He argued he was directed to file a written address in less than two hours while the 1st respondent’s counsel had argued orally. That the Court resumed later on that day at 4.00 p.m., rose at 5.00 p.m. and resumed at about 5.30 p.m. to deliver judgment in which all the claims of the 1st respondent were upheld. He argued that he was not given reasonable time and opportunity to respond appropriately to the case of the 1st Respondent. Further that the self induced urgency on the Court was by the 1st respondent and that this compromised the rights of parties to properly prepare their cases, he argued that the two day hearing was unreasonable. That it is the entire proceeding that determines if a person has been afforded or denied the right to fair hearing, and relied on the case of Mohammed v. Kana Native Authority (1968) 1 All NLR 424, He urged this Court to hold that the time given the appellant to respond to the 1st respondent’s case was not reasonable, which has occasioned a miscarriage of justice to the appellant. He argued that the trial Court discountenanced most of the documents furnished by the appellant for the reason that they were not certified by the 3rd respondent (INEC) as the 1st respondent did, see Pages 240 – 241 of the printed record. He submitted that the proceedings of the trial Court violated the right of the appellant to fair hearing and urged this Court to so hold and that the only remedy is to nullify the judgment. The learned Counsel urged this Court to allow the appeal on this issue.

In response to issue 4, the learned senior counsel to the 1st respondent D, D. Dodo (SAN) as a preliminary point argued that only ground 11 deals with fair hearing and that Grounds 3, 4, 8 and 13 should be struck out as having not been covered by any of the issues canvassed in the appeal. The learned senior counsel submitted that S. 36 of the 1999 Constitution should not be abused or used as a magic wand to cure all inadequacies in the trial Court and cited the case of Inakoju V. Adeleke (2007) 4 NWLR(Pt. 1025) P. 423.

The learned senior counsel argued that it is only the facts of a case that can influence and determine the application or applicability of the principle of fair hearing, which cannot operate outside the facts of the case. Inakoju V. Adeleke (supra) P. 620 – 622 per Tobi JSC.

He submitted that the appellant was given every opportunity to be heard and to present his case and adopted his earlier argument in respect of issue two. The learned senior counsel urged this Court to discountenance the 1st appellant’s argument as to fair hearing and to hold same as untenable in the light of the facts and conduct of the 1st appellant before the lower Court.

The learned Counsel for the 3rd respondent adopted the arguments of the learned Counsel for the appellant in respect of issue four.

Issue Five

Whether the trial Court was right to have set up and made a case for the 1st respondent in its judgment different and inconsistent with the case presented before the Court by the 1st respondent. (Grounds 5 & 6).

The appellant contended that the trial Court took over the case of the 1st respondent by making a case for the 1st respondent in its judgment different from the one made by the 1st respondent himself. The learned Counsel for the appellant reviewed the reliefs sought by the 1st respondent in his originating summons before the trial Court. He argued that the 1st respondent’s case challenged the power of the 2nd respondent (PDP) to remove his name on the platform of PDP having been cleared by INEC and does not relate to the issue of substitution of names of candidates already nominated and forwarded to INEC. In relief (b) that the complaint that the substitution of the applicant’s name with that of the appellant having been cleared by INEC was wrong without saying who carried out the substitution. Further that it could not be a challenge of the substitution of nomination forwarded to INEC. Further that relief (e) did not specify the party, (d) did not state what seat was being contested and that relief (e) recognizes the fact that the appellant had been presented by the PDP as far back as 5/2/07. Further that it is clear from the PDP guidelines exhibited by the 1st respondent that the PDP can substitute its nominated candidate without reasons that must be known to the candidate and not INEC, as stipulated under S. 34 of the Electoral Act, therefore the 1st respondent’s case was limited to the internal affairs of the PDP and the relationship of the 2nd respondent with the 3rd respondent, INEC. He argued that S. 34 of the Electoral Act were raised for the first time in the oral address of Counsel for the 1st respondent and that no mention was made of compliance with S. 32, Finally that the trial Court changed the character and nature of 1st respondent’s case and clothed it with the protections by SS, 32 and 34 of the Electoral Act. He urged this Court to allow the appeal on this issue.

In response, the learned senior counsel for the 1st respondent submitted that the trial Court did not make out a case for the respondent but rather evaluated the documentary evidence before arriving at its decision. He adopted his earlier argument on issues two and four. The learned Senior Counsel submitted that the issue of substitution after nomination is covered by S. 34 of the Electoral Act and interpreted in the Court of Appeal in Ararume v. Ugwu, and in the Supreme Court in Ugwu v. Ararume. Further that this Court should examine the documents tendered at the trial Court in the record of appeal in determining this appeal, he submitted that the trial Court was right in making the findings, he urged this Court to dismiss this issue as lacking in merit.

The learned Counsel to the third respondent adopted fully the arguments of the learned appellant’s Counsel in respect of issue Five,

Issue Six

Whether the substitution of the appellant by the 1st respondent was valid and proper and if not, whether the appellant and the 2nd respondent were right to have substituted the substitution. (Grounds 7, 9 & 10).

The appellant’s learned counsel in his brief argued that there was substitution of the appellant’s name by the 1st respondent which was illegal, as a result, that the appellant and the 2nd respondent were entitled to substitute the said illegal substitution. The learned counsel for the appellant argued that in the 1st respondent’s counter affidavit dated 30/3/07 the 1st Respondent acknowledged the removal of the appellant’s name for that of the 1st respondent. He argued that the substitution of the appellant by the 1st respondent was invalid therefore that he cannot complain of substitution of his name. The learned appellant’s counsel argued that the 2nd and 3rd respondents acted correctly in substituting the name of the 1st respondent who effected an illegal substitution of the appellant’s name. Further that in the trial Court the 1st respondent never challenged the cogency or verifiability of the reasons given for his substitution therefore that it was not an issue before the trial Court; therefore that whatever finding was done by the trial Court in this regard was done without being prayed for. The learned counsel for the appellant submitted that paragraph 12 of his reply to the further affidavit and further and better affidavit (PP.204- 204 of the record) was not denied. He urged this Court to hold that the substitution of the appellant by the 1st respondent was illegal, that the appellant and the 2nd respondent, having discovered such illegal substitution are entitled to correct it and that the reasons stated for the substitution are cogent and verifiable, and that this Court should allow the appeal on this issue.

Finally that this Court should hold that if any of the issues 1 – 6 is sustained in favour of the appellant it should be sufficient to ground this appeal and the grant of the reliefs sought by the appellant.

In response to the arguments canvassed by the appellants’ counsel, the learned senior counsel for the 1st respondent submitted by way of objection that the grounds covered by this issue, (grounds 7, 9, and 12) of the Amended Notice of Appeal with this issue formulated should be struck out on grounds of incompetence.

The arguments in respect of the objection were subsumed in the 1st respondent’s brief. The learned senior counsel argued that the grounds of appeal did not relate to the decision of the trial Court complained against by the appellant as the Court did not make any pronouncement of finding of fact in respect of that and urged this Court to discountenance any issue/argument arising from it, learned senior counsel cited the case of Dalek (Nig) Ltd v. OMPADEC (2007) 7 NWLR (Pt, 1033) P. 403 at 403.

He argued further that the “illegal” substitution of the 1st appellant was never raised as an issue nor canvassed within the written address of the 1st appellant and therefore constitutes a new and different case that leave of Court would be required for this to be allowed. See the cases of Ngige v. Obi (2006) 14 NWLR (Pt. 999) P. 1; Adegoke Motors Ltd V. Adesanya (1989) 3 NWLR (pt 109) P. 250, He submitted that the 1st appellant was seeking to be determined what the case in the lower Court was. Further that the 1st appellant failed at the lower Court to prove his allegations that he was nominated by the party to INEC. He argued that the 1st respondent’s case has remained that he was substituted without reasons being advanced, as required by S. 34. Further that as seen in Exhibit SENEATOR 4 which was proof of the substitution, the 1st respondent gave the reason as “without enough information” which is no reason at all and incapable of being verified. That Exhibit SENATOR 4 had no information about 2nd Appellant’s primaries.

The learned senior counsel urged this Court to dismiss this issue on the objection raised to it or from the arguments canvassed, that the entire appeal be dismissed and affirm the judgment of the trial Court granting the 1st respondent’s claim.

In response to issue six as formulated by the appellant whom the 3rd respondent adopted, the learned counsel to the 3rd respondent argued that it is in evidence that the appellant was the originally nominated candidate of the 2nd respondent until his substitution by the 1st respondent. The appellant and the 2nd respondent subsequently effected the substitution of the 1st respondent. Learned counsel argued that the 3rd respondent has no control over the choice of candidates by political parties but where a political party had nominated a candidate but seeks to make a substitution in conformity with the law, the 3rd respondent is bound to honour such request and that the 3rd respondent (INEC) would give effect to any substitution provided the procedure and conditions for the substitution of a candidate is complied with by a party seeking such substitution, that the 3rd respondent (INEC) would give effect to it. Further that the requirement of the law was met when 2nd respondent wrote the 3rd respondent requesting that the 1st respondent be substituted for the appellant. That the 1st respondent’s case before the trial Court was whether the 2nd respondent can substitute him for another candidate. He never complained about the reason adduced for the substitution. Therefore that the trial Court cannot import into questions placed before it for determination what was not there. Finally that the substitution of the 1st respondent for the appellant by the 2nd respondent was valid as it complied with S. 34 of the Electoral Act. He urged this Court to set aside the judgment of the trial Court and allow the appellant’s appeal.

By way of reply the learned counsel to the appellant submitted that the issue of “illegal” or non-nomination of the 1st respondent was directly in issue before the trial Court and not being raised newly for the leave of the Court to be required. Contrary to the argument of the 1st respondent’s counsel that the appellant bears the onus of establishing his nomination, the learned counsel for the appellant submitted that the onus is on the 1st respondent, that the appellant asserted that he was duly nominated and furnished Exhibit SOLA 1 as evidence of his nomination, which was later confirmed by the 1st respondent and that Exhibit SENATOR 2 relied upon by the 1st respondent as evidence of compliance with S. 32 (1) of the Electoral Act was challenged by the appellant in paragraph 14 of his reply to further and better affidavit at pages 202 – 204, particularly at 203 where the authenticity of Exhibit SENATOR 2 was challenged. That the averment that Exhibit SENATOR 2 was fraudulently procured and not signed by the Chairman and Secretary, but signed by Chairman alone was not denied by the 1st respondent, therefore deemed admitted and binding even on the trial Court, and no weight should have been attached to Exhibit SENATOR 2, learned counsel relied on G. Chitex Ind. Ltd. V. O. B. T. (Nig.) Ltd. (2005) 14 NWLR (Pt. 945) 392 at 411, paras D – G. Further that the trial Court should not have used the same Exhibit to sustain the case of the 1st respondent as to the alleged original nomination or compliance with S. 32 (1) of the Electoral Act, and that non compliance with S. 32 by the 1st respondent was an issue before the trial Court. That facts admitted need no proof, and relied on the case of OLUGBODE V. Sangodeyi (1996) 4 NWLR (Pt. 444) 500 at 516, Paras. C – D.

The learned appellant’s counsel argued that the 1st appellant’s substitution by the 1st respondent was not effected by the 2nd respondent (PDP) but by the 1st respondent himself, therefore that the substitution was effected illegally and without authorization and not in compliance with either the PDP Constitution and Guidelines or S. 34 of the Electoral Act. Further that a candidate’s name that is already forwarded to INEC ceases to fall within the internal or intra party affairs of the PDP. Finally that the issue of nomination of the appellant, his illegal substitution by the 1st respondent and the eventual valid substitution by the 2nd respondent are not intra party matters of the 2nd respondent. That the issue of verification of the reasons given in an application for substitution is for INEC and not the candidate. Once INEC is satisfied with the reasons and goes on to verify them as in this case, and then there should be no action at the instance of the candidate. He urged this Court to allow this appeal as the 1st respondent’s brief has not addressed the issues raised by the appellant in this appeal.

SECOND APPEAL

Following the judgment of the learned trial Court on 18th April, 2007 the trial Court entered judgment in favour of the 1st respondent (Senator H. O. Ehinlanwo) Being dissatisfied, the 2nd appellant (PDP) also appealed. The 2nd appellant filed his brief dated 22/5/07 on the same day. In response, the 1st respondent filed his brief of argument dated 30/5/07 on 31/5/07 and deemed on 4/6/07. The 2nd appellant’s reply brief dated 5/6/07 was filed on 6/6/07.

At the hearing the parties adopted their various briefs of arguments. The learned senior counsel for the 2nd appellant Prince Adetokunbo Kayode (SAN) in his brief formulated three (3) issues for determination which are:

(1) Did the non-service of the vital processes of Court on the 2nd Appellant not amount to a violation of her right to fair hearing which prejudiced the case of the said Appellant and render the entire proceedings a nullity?

(2) Who was the PDP candidate for the Ondo South Senatorial District at the Election?

(3) Was compliance with S. 34 (2) of the Electoral Act an issue in this case and did the PDP and INEC counter affidavits not provide the evidence of such compliance.

In arguing his appeal the appellant adopted the issues as formulated above.

On issue one, the appellant (PDP) complained that her right to fair hearing as enshrined in S. 36 (1)(b) of 1999 Constitution of the Federal Republic of Nigeria as well as the Rule of Natural Justice “audi alteram partem” were violated or bridged by the proceedings leading to the lower Court’s judgment. The learned senior counsel to the appellant Prince Adetokubo Kayode (SAN) in his brief urged this Court to nullify the proceedings. He argued that the 1st respondent on 16th April, 2007 filed a Further and Better Affidavits of Four (4) main paragraphs with Six (6) Exhibits (SENATOR 1-6) but failed to serve or ensure the service of the affidavits on the appellant. The affidavit contained the main case of the 1st Respondent and allegations against the appellant (PDP). Further that the case was commenced on 17/4/2007 and concluded on 18/4/07 without the service on the appellant the Further and Better Affidavit with the Exhibits, and the trial judge relied on same in the judgment, (See Pages 240 – 242 of the record). As a result the appellant could not respond to it, where allegations were made that the PDP Chairman’s signature were forged on Exhibit Senator 4, that documents submitted to INEC were fictitious and that documents were smuggled into the office of INEC, as a result prejudiced the case of the 200 appellant and violated its right to fair hearing. Reliance was placed on:

B. O. N. V. Abiola (2007) 1 NWLR Part 1014 Page 23 at 36 Paras F – G; Inakoju V. Adeleke (2007) 4 NWLR Part 1025, Page 423 at 621, B – H; ANPP v. INEC (2004) 7 NWLR Part 871 Page 16.

That it was the duty of the 1st appellant to ensure that the appellant was served and the duty of the lower Court to ensure that all processes were served on the parties. The learned senior counsel urged this Court to set aside the judgment of the trial Court on this ground. Also referred to were the cases of Azokwu V. Nwokama (2005) ALFWLR Pt. 27 1 page 46; Sken Consult Nig. Ltd. v. Ukey (1981) 1 SC Page 1; Madukolu v. Nkemdilim (1962) All NLR (Reprint) 581 at 589 – 590; A.G. Kano State V. AG Fed. (2007) 6 NWLR Part 1029 Page 164 at 181 Paras. D. G; Mohammed v. Kano Native Authority (1968) 1 All NLR.

In response to the 2nd appellant’s appeal filed on 22/5/07, the learned senior counsel D. D. Dodo (SAN) for the 1st respondent in response as a preliminary point argued that none of the grounds contained in the 2nd appellant’s Notice of Appeal relates to the decision of the trial Court being complained against. He contended that all the grounds of appeal and the issues formulated are struck out on grounds of incompetence. Reliance was placed on: Dalek (Nig) Ltd vs. OMPADEC (2007) 7 NWLR (Pt. 1033) P. 403 and MBN Plc V. Nwobodo (2005) 14 NWLR (Pt. 945) P. 379. The learned senior counsel urged this Court to strike out ground one as the issues emanating from these were never canvassed in the lower Court. Further that ground 2 – 8 of the Notice of Appeal of the 2nd Appellant are repetitive of the grounds of appeal of the 1st appellant, and therefore unnecessary. He urged this Court to strike out the appeal on grounds of incompetence.

In the alternative, in response to the 2nd appellant’s brief should this Court not uphold the objection, the learned senior counsel adopted the three (3) issues formulated by the 2nd appellant.

In response to issue one, he argued that the issue of non-service was never raised at the lower Court and that the 2nd appellant participated fully in the proceedings and cannot now raise the issue of fair hearing by reason of non-service of process. He argued that it is an abuse of S. 36 of the 1999 Constitution identified in Inakoju v. Adeleke (supra), and the case of Onigbu V. Una (2002) 16 NWLR (Pt. 792) P. 175 at 211 – 212.

Under issue two, the appellant reviewed the two issues formulated in the trial Court for determination and the reliefs sought and gave the PDP Electoral Guidelines for primary Election the steps to be taken before a person can emerge as the candidate of the party.

i) The aspirant shall be qualified to contest under paragraphs 23, 24 and 25.

ii) Shall poll at least 50% of the votes cast at the primary election (paragraph 30 (d).

The learned senior counsel argued that when a party has met the condition precedent, he becomes validly nominated and the right acquired would enjoy the protection of S. 34 (2), for there has to be cogent and verifiable reason. Further that it is on record that the 1st appellant won the primaries with over 78% of the votes cast and that it is the 1st appellant’s name that should have gone to INEC in the first place as the party’s candidate. That where a party seeks to substitute, then cogent and verifiable reasons must be given and relied on the cases of Ararume V. INEC (supra) and Ugwu V. INEC (supra). Amaechi V. INEC (supra).

In response to the second issue, the learned senior counsel submitted that by the judgment of the lower Court of 18/4/07 the 1st Respondent Senator H. O. Ehinlanwo was the candidate of the PDP for the Ondo South Senatorial District election held on 21/4/07 which judgment in law he argued is valid until set aside. He relied on the case of Salaudeen v. Oladele (2003)3 NWLR (806) P. 44 Para F.

The learned senior counsel argued that anything that occurs before a candidate’s name is sent to INEC remains an intra-party affair. Onuoha v. Okafor, and that Amaechi vs. INEC do not apply. He argued that this issue is different from the case of the 2nd appellant as 1st respondent in the lower Court, being a new issue it should be dismissed as it lacks merit.

On issue three, the learned senior counsel submitted that a Court has a duty to decide only the case presented before it, and relied on Ishola V. UBN Ltd (2005) 6 NWLR (pt 922). 422.

That the question the 1st Respondent wanted determined was whether the PDP can substitute him not whether the 1st Respondent has been substituted correctly in line with S, 34, and that the Court has no duty to formulate a case for the parties. Ogboru v. SPDC (Nig.) Ltd (2005) 17 NWLR (pt 925). 467. Adebayo V. Shogo (2005) 17 NWLR (Pt. 925) 467. The learned senior counsel argued that the learned trial judge erred in holding that the 1st respondent was not properly substituted. The learned senior counsel went ahead to distinguish the facts in Ararume’s case from the facts of this case, one of which is that Ararume won the primaries the 1st respondent did not. In Ararume’s case no reason was given, whereas in the present case reasons have been given, whether the reason is “good” enough is immaterial, what is important is the justice of the case depending on the surrounding circumstances.

Finally that by paragraph 12 of his reply of Further Affidavit and Further and Better Affidavit (PP. 202 – 204 of the record) the requirement of S. 34 (2) of the Electoral Act was met and urged the Court to so hold to allow the Appeal and dismiss the action.

In response to the third issue, the learned senior counsel adopted and relied on his earlier argument contained in his brief filed in response to the 1st appellant’s appeal. He urged this Court to dismiss the appeal as it lacks merit.

By way of reply to the preliminary objection, the learned senior counsel to the appellant submitted that service of all processes of Court to be used in a proceeding is mandatory and a CONDITION PRECEDENT to adjudication, and bordering on jurisdiction could be raised at any stage. Gafi V. Ipaye (2003) 8 NWLR Part 823, Page 583 at 591. He argued that the right of the 2nd appellant having been violated, that the judgment of the trial Court be set aside.

On grounds 2-8 as being repetitive of the 1st appellant’s appeal, the learned senior counsel for the 2nd appellant submitted that the objection to these grounds of appeal and the issues formulated there from is misconceived and should be discountenanced, as these grounds are extracts from the judgment being appealed against.

In respect of issue two, the learned senior counsel referred to paragraph 30 (d) of PDP Guidelines for primaries which reads:

i) The aspirant shall be qualified to contest under paragraphs 23, 24 and 25.

ii) Shall poll at least 50% of the votes cast at the primary election (paragraph 30 (d).

I have reviewed in detail the submissions of the learned counsel in the two appeals.

With the 1st appeal of Hon. (Chief) Olushola Oke as the appellant, in issue one, whether the trial Court was right to have assumed jurisdiction over the case of the 1st respondent, the appellant had argued that it was wrong for the 1st respondent to have commenced his action by way of originating summons. That the conflicting and contradictory affidavit evidence of the parties before the lower Court could only be resolved by calling oral evidence, for instance nomination, verification and clearance of the 1st respondent, substitution, as between the 1st respondent and the appellant and forgery of documents presented by the parties. From the arguments of the learned appellant’s counsel the objection is as to the jurisdiction of the trial Court to have entertained the matter where he felt that the action was irregularly commenced. It was held in Dapialong v. Lalong (Supra) by Akaahs JCA that:

“The Form of commencement of an action does not make it incompetent. It does not matter whether the action was begun by writ of summons. What is relevant is the question of justice of the case.”

I agree with the learned senior counsel for the 1st respondent and the above pronouncement that what matters is the justice of the case and resolution of the real issues between the parties. In the present case one has to think of the date of the action before the trial Court. The originating summons was filed on 16/3/07 and the date of the proposed election for which parties are interested fixed for 21/4/07 barely a month apart. Going by the process of oral evidence would certainly have caused delay in resolving the substantive issue. The jurisdiction of a Court is determined by the claim of the plaintiff, in this case the claim of the 1st respondent in his originating summons. What is important is the real dispute not the mode of commencement of the action. See Abacha V. Fawehinmi (2000) 6 NWLR (Pt. 660) P. 228 at 358; AG Federation v. Guardian Newspapers (1999) 9 NWLR (pt. 618) P. 187; AG Anambra State V. AG Federation (1993) 6 NWLR (Pt. 302) P. 692; Adeleke V. Osha (2006) 16 NWLR (pt. 1006) P. 608 at 711.

The issue is the substitution of 1st respondent’s name from 2nd respondent’s list of candidates for the Senatorial election after same had been sent to the 3rd respondent who screened and cleared him. From the issues relating to the winner of the primaries, the absence of nomination, verification and clearance of 1st respondent, whether documents were tampered with or not, from the averments in all the affidavits and documentary evidence attached in support filed by the parties there is no substantial dispute on issues of facts, thus originating summons could be used to commence and determine the action. There were enough documentary evidences attached to the affidavits of all the parties, if closely examined and compared would be used to arrive at a just decision without necessarily calling oral evidence. See Keyamo v. LSHA (2002) 18 NWLR (pt. 799) 605 at 613. Jimoh v. Olawoye (2003) 10 NWLR (Pt. 828) 307.

I agree with the learned senior counsel for the appellant that it is trite that a Court may suo motu resolve conflicting affidavits where there is sufficient material, especially documentary evidence, without resorting to oral evidence. The important thing is that the documentary evidence is properly utilized to arrive at a proper and just decision in resolving the controversy; this saves time and avoids unnecessary delay.

See AG, Adamawa V. AG, Federation (2005) 18 NWLR (Pt. 959) P. 581; Falobi V. Falobi (1976) NWLR 169; WINLVN Ltd v. NACB (2000) 8 NWLR (pt.670) 594; Tanarewa (Nig.) Ltd V. Arzai (2005) 5 NWLR(Pt. 919) 593.

The exact date of substitution of the 1st respondent, these could be resolved through documentary evidence from all the parties.

Finally on this, proceedings commenced by originating summons are expeditiously dealt with. The affidavit evidence with the Exhibits attached is relied upon, but not to be used where the proceedings are hostile proceedings in which the facts are disputed. See Doherty v. Doherty (1964) NWLR 144; National Bank of Nigeria V. Alakija (1978) 9/10 SC 59; Famfa Oil Ltd v. AG. Federation (2003) 18 NWLR (Pt. 852); Director of State Security Service v. Agbakoba (1999) 3 NWLR (Pt. 595) 314. In the proceedings affidavits evidence was used to determine the case between the parties, fact of the substitutions are not disputed but whether properly done in compliance with the law.

I hold that the Court was right to have assumed jurisdiction over the case of the 1st respondent.

In respect of issue two, the trial Court found that the letter dated 19/2/07 from Ondo State Government, Exhibit A to the further and Better Affidavit of the 1st respondent dated 26/3/06, (P. 242 of the record) is evidence of intending substitution. Exhibit A was furnished by the 1st Respondent, addressed to the 2nd Respondent (PDP) and not to the 3m Respondent INEC. It is INEC that treats issues of substitution. For the 1st appellant Exhibit A was to show that his substitution was not only instigated by the Governor but that the substitution was not in compliance with the Constitution and Guidelines of 2nd respondent (PDP). It was wrong for the trial Court to have held that Exhibit A was evidence of intending substitution. The minutes on Exhibit A by the PDP Secretary said: “Effect, if we have not done so already” (See Page 8 of the record) shows the substitution was before 19/2/07 when Exhibit A was made. Exhibit SENATOR 4, a letter dated 5/2/07 from the 2nd respondent (PDP) to the 3rd respondent signed by the Chairman and Secretary, shows the date of the substitution to be 5/2/07, a date before 19/2/07 when Exhibit A was made. It is clear that by the deposition of the 1st Respondent in paragraph 5 (a) and (b) of his counter affidavit dated 30/3/07 (Page 222 of the record) the 1st respondent admitted that the appellant was the candidate originally nominated but was changed by the 1st respondent who admitted using the intra party mechanism to effect the change. It was wrong for the trial Court to have held Exhibit A to be lacking credence as it was dearly signed by the Governor and State Chairman of the PDP, the authenticity was not in issue.

The 1st respondent did not state in any of his affidavits that he filed and submitted any affidavit verifying his particulars and none was exhibited before the trial Court by the 1st respondent, which was in his affidavit and not denied by the 1st respondent.

Article 30 (d) of the Constitution and Guidelines of the 2nd respondent (PDP) exhibited and relied upon the 1st respondent in paragraph 4 (i) as Exhibits 81 and 82 in the Further Affidavit dated 26/3/07, Page 6 of the record was ignored by the trial Court. In the guideline (Pages 9 -17 of the record) particularly Page 15, Article 30 (d) provides that before a candidate is ever considered for nomination for Senatorial election, he must have participated in the party primaries and must have scored at least not less than 50% of the total votes cast at the said primaries. Exhibits B1 and B2 were overlooked by the trial Court in the Further Affidavit of 26/3/07 of the 1st respondent as Applicant in the trial Court. In paragraph 4 (c) of the same Further Affidavit the 1st respondent averred that he knew that the party’s Constitution and guidelines does not provide for the substitution of nominated candidates without reasons and which must be communicated to the candidate. The 1st respondent’s case is clearly that if a nominated candidate is to be substituted, following the guidelines, there should be reasons for doing so, and which reason must be communicated to the candidate.

The trial Court made a finding of compliance by 1st respondent with S. 32 of the Electoral Act. There was nothing to show that the 1st respondent was screened and cleared by INEC and the 1st respondent did not adduce evidence of clearance to support same, even when the appellant insisted the 1st respondent was never screened and cleared by INEC, the 1st respondent had no answer to this. The trial Court found that the 1st respondent complied with S. 32 of the Electoral Act but, by Exhibit SOLA 1 (Affidavit verifying the particulars of the Appellant) in paragraph 4 of the Further and Better Counter Affidavit of the appellant dated 18/4/07 (PP 165 – 173 of the printed records) that on the contrary it was the appellant that complied with S, 32 of the Electoral Act and not the first respondent, the trial Court was therefore in error to have made such finding and I so hold.

Exhibit SOLA 1 (Affidavit verifying the particulars of the Appellant) referred to in Paragraph 4 of the Further and Better Counter Affidavit of the appellant above of 18/4/07 when examined together with paragraphs 4 (i) – (iv) of tile 3rd respondent’s Counter affidavit of 17/4/07 confirming receipt of Exhibit SOLA 1, confirming not only the receipt of Exhibit SOLA 1 but their stand on the candidature of the appellant following the verification of the personal particulars of the appellant and was accepted as the authentic and validly accepted candidate of the 2nd respondent (then 1st defendant) in the final list (See Pages 122 -123 of the record paragraphs 4 (i) – (iv) of the 3rd respondent’s Counter Affidavit (then 2nd defendant) The learned trial Court should have preferred and utilized the affidavit evidence of the appellant that he was first nominated in compliance with S. 32 of the Electoral Act than finding for the 1st respondent with nothing to back it up.

I agree with the learned senior counsel for the 1st respondent that documents speak for themselves which the Court must look at as opposed to the averments raised by parties in the suit, See FATB v. Partnership Inv. Co. Ltd. (2003) 18 NWLR (Pt 851). For consistency and to corroborate facts as alleged by the parties a close look at the documents presented by the appellant and the 1st respondent which I earlier listed is necessary.

1ST RESPONDENT’S EXHIBITS:

Exhibit A letter dated 19/2/07 was signed by the Governor of Ondo State and the State Chairman of PDP showing the substitution of the appellant’s name for the 1st Respondent, the appellant having won in the party primaries earlier held on 2/12/06 by 2024 votes while 1st respondent had 323 votes, Exhibits B1 and B2, paragraph 30 (d) shows that no aspirant for the primary election to the Senate or the House of Representatives shall be declared nominated or erected, unless he has polled at least 50% of the votes cast and the winner shall be declared returned by the Chief Returning Officer immediately after the election. Exhibit C is the nomination form for a member of Senate, SENATOR 1 is the party ID card, and SENATOR 2 is the PDP list of candidates for the Senatorial Election. SENATOR 3 is the CTC of form EC. 4B (V), SENATOR 4 is the letter dated 5/2/07 showing that the appellant’s name has been substituted to be the PDP candidate for Ondo South Senatorial District, Ondo State while SENATOR 6 is the INEC form showing submission of the appellant’s name as the candidate for PDP.

APPELLANTS EXHIBITS:

Exhibit A series were documents relating to the PDP primaries for Ondo South Senatorial Seat (Pages 127 – 133 of the record) which were challenged by the 1st respondent and another, which petition failed and the results declaring the appellant winner remained. The report was signed by the three members of the State Electoral Panel and five other members of the party, it included the result of the primaries election, showing that the appellant scored 2024 while the 1strespondent scored 323 (See Page 134 of the record).

The Provisional Screening Certificate of the appellant’s from the party dated 28/11/06 and 29/11/06 signed by the Chairman and Secretary respectively issued to the appellant, (Page 135 of the record). Exhibit SOLA 1 – Form C. F. 001 (pp. 168 – 173) the affidavit in support of personal particulars of person seeking election to the offices listed including the Senate.

SOLA 2 – A PDP Leadership Bond (PP. 174 – 180) dated 11/1/2007 issued to the appellant.

SOLA 3 – Form E.C. 4B (V) (PP. 181 – 196) is the INEC (3rd Respondent) nomination form issued to the appellant.

SOLA 4 – Extract of PDP Constitution (PP. 197 – 200 of the record) within which is Article 17.2 (e) which provides for the conduct of primaries for the party’s candidate for the post of Senator, and that the primaries shall be held at Senatorial constituency headquarters, a state affair.

SOLA 5 – is the PDP membership card of the appellants.

The learned senior counsel for the 1st respondent argued that the documents relied upon by the appellant at the lower Court are either not relevant to the issues for determination before the Court or they are inconsistent with the averments made in the affidavits contrary to the argument of the learned senior counsel under this issue, the appellant by his Exhibit A series has shown that he was the candidate that emerged winner following the primaries, petition and report of the electoral panel in Ondo State, which was confirmed by the report of the panel. The result of the primaries shows clearly that the appellant emerged winner with 2024 and the 1st Respondent 323 votes after the primaries therefore the candidate for PDP for the Senatorial seat in line with the party guidelines and Constitution (Exhibit B1 and B2) of the 1st respondent’s article 30 (d) of the Constitution and guidelines of the 2nd respondent (PDP). The appellant was cleared, his particulars were verified without any challenge or dent Exhibit SOLA 1, the signed leadership Bond – Exhibit SOLA 2, SOLA 3, shows he was nominated, SOLA 4 shows and confirms that the PDP Constitution makes it mandatory to have participated in the primaries at the headquarters which the appellant did and won, Exhibit SOLA 5 shows the appellant’s membership.

With the Exhibits and documents put forward by the 1st respondent, Exhibit A the letter dated 19/2/07 shows that the appellant was the candidate put forward by the 2nd respondent to the 3rd respondent, having substituted the 1st respondent. Exhibits B1 and B2 shows the Electoral Guidelines and PDP Constitution, if followed confirm the candidature of the appellant having participated and won in the primaries. Exhibit C – Form E.C. 46 (V) the nomination form could be issued to more than one candidate, as well as SENATOR3, and SENATOR S, Exhibit SENATOR 6 clearly shows that the appellant’s was the name submitted to the 3rd respondent (INEC) as the person nominated as the candidate.

A step further, the report of the PDP State Electoral Panel for Ondo State shows clearly that the appellant emerged winner in the primaries, the report was signed by five members, which has not been challenged. (See Pages 145 – 147 of the record). On page 148 of the record is also the National Assembly primary election results showing the appellant as having emerged winner with 2024 votes as against the 1st appellant with 323 votes.

From the documents presented by the appellant and the 1st respondent, I agree with the learned senior counsel for the 1st respondent that the name of the 1st respondent was initially nominated and his name sent to INEC but the Governor and the State Chairman of 2nd respondent (PDP) effected a change in the 1st respondent’s candidacy as per Exhibit A dated 19/2/07 to the National secretary of the 2nd respondent (PDP), after SENATOR 4 had been written on 5/2/07 to the National Chairman of 3rd respondent INEC by the National Party Executives, Chairman and Secretary. The said Exhibit SENATOR 4 confirmed that the appellant was the PDP candidate for Ondo South Senatorial District, Ondo State. It is clear in the letter that the appellant substitutes the earlier name for the constituency which was clearly stated to have been “substituted without enough information” See the letter of 5/2/07 as reproduced below.

February 5, 2007

Prof. Maurice Iwu

Chairman

INEC

Abuja

SUBSTITUTION: PDP CANDIDATE FOR ONDO SOUTH SENATORIAL DISTRICT, ONDO STATE

This is to confirm that Chief (Hon.) Olusola Oke is the PDP Candidate for Ondo South Senatorial District, Ondo state.

Chief (Hon.) Olusola Oke substitutes the earlier name for the aforementioned constituency which was submitted without enough information.

This is for your necessary action.

SGD:

SEN. (DR.) AMADU ALI, GCON

National Chairman

SGD:

OJO MADUEKE, CFR

National Secretary

The reason for the substitution is stated in the letter. The 1st respondent’s name had been forwarded earlier without enough information. It is glaring from the documents submitted by the parties that the 1st respondent did not emerge winner in the primaries as required by the Party Guidelines and Constitution. There is no evidence that he was nominated by the 2nd respondent. The only place the 1st respondent’s name appears is the 2nd respondent’s national list of candidates for the senatorial election. (See Pages 79 – 83, especially Page 81 of the record) The list is dated 21/12/06.

The letter of 19/2/07 could be explained. How the 1st respondent’s name got into the National list of candidates cannot be explained. Ondo South Senatorial seat is not a National position, but a Senatorial position in the State, therefore the nomination start at the State level, the State executives ought to know about it, they should be the ones to forward the candidate’s name to the National body. The 2nd respondent (PDP) initially did not have enough information as at the time 1st respondent’s name was submitted, the 2nd respondent was right in removing and substituting the 1st respondent’s name on the discovery of the lack of information before the submission. Nowhere has the 1st respondent claimed to have met the 2nd respondent’s guidelines or Constitution, which is a condition precedent to qualify to be nominated, and forwarded on behalf of the 2nd respondent as a candidate for the seat, he has not claimed to have won in the primaries under S. 34 (1) and (2) of the Electoral Act and in line with decided authorities Onuoha V. Okafor and Ararume V. INEC. Ugwu v. Ararume it is the party’s prerogative to decide who their flag bearer would be, but the candidate must also go through the processes that qualify him as a candidate. No doubt, the 2nd respondent (PDP) has complied with S. 34(1) and (2) of the Electoral Act 2006. The appellant was nominated in compliance with S.34 (2) of the Electoral Act 2006, his substitution was within time 60 days before election under S. 34 (1) to effect a change of candidate, S. 34 (2) requires cogent and verifiable reasons to be given, there is no measure for this implementation but subject to the discretion of the party substituting and INEC. INEC verified the particulars of the appellant in line with the party’s Constitution. The nomination and sponsorship of candidates by political parties to contest elections are considered to be an intra party or domestic affair of the party to be determined by the party’s guidelines and Constitution, by which they are bound. Dalhatu V. Turaki (2003) 15 NWLR pt. 843 P. 310.

Exhibit SENATOR 2 the PDP list of candidates for the Senatorial Election is the only evidence of the 1st respondent’s name appearing as the candidate for the 2nd respondent for the contested seat. Other requirements were not met.

Contrary to the view of the learned senior counsel for the 1st respondent the main issue in this case is: whether the applicant now 1st respondent is the party rightful candidate to contest for the office of Senator in the Ondo South Senatorial Zone in the election of 21/4/07 (relief (c) of the originating summons) and relief 6 in this appeal which I shall come to.

I am of the humble opinion that the appellant’s documents are weightier and more relevant to the issue at hand. Even if the 1st respondent was first nominated, it is clear that the party later said it was done without enough information and therefore effected a change. The appellant was entitled to have the judgment of the Court in his favour.

In respect of issue three, Ararume V. INEC (supra) applies. Similarly in Ararume’s case he won the Governorship primaries conducted by the PDP for Imo State, had 2006 votes against 36 scored by Ugwu the 2nd respondent, Ararume’s name was forwarded to INEC by the PDP as the candidate in compliance with S. 32 (1) and (2) of the Electoral Act, later PDP forwarded Ugwu’s name to INEC which brought about the institution of the action by Ararume challenging the step taken by PDP. The lower Court refused to grant Ararume the reliefs sought while the Court of Appeal held that the lower Court was wrong not to have done so in that S., 34 protects a candidate who is not disqualified that has won in the primaries, the nomination should not be subject of substitution. This protects a lawful mandate secured after primaries contrary to the trial Court’s opinion in the present case that S. 34 protects any mandate irrespective of the result of the primaries, The primaries precede the nomination. The result of the primaries were available in the trial Court showing that there was a contest in which the appellant emerged winner with 2024 votes against 323 votes, thus the appellant emerging as the candidate for Ondo South Senatorial District for which the 2nd respondent nominated the appellant in line with its Constitution and Electoral Guidelines. The application was made not later than 60 days to the election. Reasons were given in the letter of 5/2/07 for the substitution of the 1st respondent. The reasons were never challenged let alone not being cogent or verifiable. INEC also accepted the application for substitution and acted on it in line with S. 35 of the Electoral Act and the appellant had complied with sections 32 (2) and 33 (1) of the Electoral Act.

The issue before the trial Court was not

(a) Whether a reason was given to INEC for substitution; and

(b) Whether the reason given was cogent and verifiable.

The 1st respondent admitted that he supplanted the name of the appellant who had been validly nominated without compliance with relevant provisions of the Electoral Act. The 1st respondent not only lost in the primaries, he admitted changing the name of the appellant. Having held earlier that the trial Court had jurisdiction to entertain the matter in the form of originating summons, this is a proper situation where this Court can exercise its power under S. 16 Court of Appeal Act to make the necessary order for determining the real question in controversy in the appeal, that is whether the case of Ararume v. INEC and Ugwu v. Ararume should have applied against the appellant as the trial Court has done. Whether a reason was given to INEC for the substitution and whether the reason given was cogent and verifiable. The real question under issue three was whether the appellant who won in the primary election should be subject to substitution, having won in the primaries and should be protected by S. 34 of the Electoral Act, it protects a valid mandate of a candidate not illegally substituted candidate. I am in agreement with the learned Counsel to the appellant that the trial Court wrongly applied the decision in Ararume’s case which should be in favour of the appellant with a valid mandate following his victory in the primary election.

Issue Four, is on the right to fair hearing by virtue of S. 36 (1) of the 1999 Constitution which the appellant said was violated, by not being given adequate time to prepare his response to the pending application in defense, and to respond to the case of the 1st respondent.

The case before the trial Court was first heard on 26/3/07. On application the appellant was joined on 17/4/07 and the matter adjourned to the next day 18/4/07 for continuation, the trial Court refused the appellant an adjournment and proceeded to conclude the case and gave judgment the same day 18/4/07. Every case must be looked at with its surrounding circumstances. In this case timing of the suit and the need for speedy hearing, bearing in mind that the case was instituted by Originating Summons to save time, considering that as at 17/4/07 the election was four days away, there was need to conclude the matter to ensure that the res in the case is not wiped out, see

Inakoju v. Adeleke (supra).

The important thing is that the appellant filed his necessary documents and was given the opportunity of being heard. The matter is a pre-election matter in which time was of essence. The matter had to be determined before 21/4/07, there was need to preserve the res. Technical victory here would be of no use, if the matter is remitted back to the trial Court for hearing at the pace the parties would wish, who knows when the case would be concluded. The res of the dispute were to determine who was to be the 2nd respondent’s candidate for the Senatorial seat in Ondo South Senatorial District in the Election that was four (4) days away. Rather than allow technical victory under this issue it is better to do substantial justice, not remitting the case for fresh trial where the parties would have all the time in the world but would invoke S. 16 of the Court of Appeal Act to assume the jurisdiction of the trial Court and determine the real question in controversy in the issues formulated.

In respect of issue five, the 1st respondent’s case borders on the interpretation of the Constitution and Guidelines of the 2nd respondent (PDP), and validity of his substitution made after clearance by INEC, validity of substitution made after the time prescribed by INEC and order restraining 2nd respondent (PDP) from further presenting or recognizing the appellant to contest as Senator for Ondo South Senatorial District. From the reliefs sought in the lower Court, the 1st respondent’s case does not relate to the issue of substitution of names of candidates already nominated and forwarded to INEC but challenged substitution after being cleared by INEC, (see relief (a), also (b). As at 5/2/07 the appellant was the candidate presented by the 2nd respondent to the 3rd respondent as their candidate – See Exhibit SENATOR 4, long before the 1st respondent commenced his action. It is noted that who the 2nd respondent (PDP) recognizes to contest for any office is the internal affairs of the party. It is when such presentation gets to the 3rd respondent (INEC) that S. 34 of the Electoral Act comes in. The reliefs sought by the 1st respondent did not relate to any role played by INEC. In the 1st respondent’s case before the trial Court, compliance with S. 32 of the Electoral Act was not raised and he did not contest the reason given for his substitution, under S. 34. I agree with the learned Counsel for the appellant that it was in the address of Counsel that S. 34 was introduced for the first time, which was not part of the evidence before the trial Court.

The trial Court therefore converted the case of the 1st respondent to one that enjoys protection by S. 32 and S. 34 of the Electoral Act. I agree with the learned appellant’s Counsel that Exhibit SENATOR 4 presented by the 1st respondent was to establish fraud and fictitiousness not that the reasons given by the 2nd respondent were not cogent and verifiable before the substitution, and I so hold.

All the affidavits filed by the appellant showed that he was listed as the candidate of the PDP for Ondo South Senatorial District. This was confirmed by the 2nd and 3rd respondents by the Exhibits and documents earlier reviewed. The 1st respondent acknowledged the fact that he effected the removal of the appellant’s name using intra party mechanisms in replacing same with his name. Therefore contrary to the finding of the trial Court it is clear that the appellant won the primaries and representing the 2nd respondent as its candidate. The 1st respondent who lost then effected a change, as per paragraph 5 (a) of the 1st respondent’s Counter affidavit of 30/3/07 where it was stated that:

“…he fully utilized available intra-party mechanisms…” to effect the substitution and that … the 1st defendant (PDP) requested the 2nd defendant (INEC) to remove the name of the applicant (Olushola Oke) and replace it with that of applicant/respondent (Senator Ehinlanwo).”

The 1st respondent therefore got the 2nd respondent (PDP) to apply to the 3rd respondent (INEC) to substitute the name of the appellant with his. S. 34 regulates the substitution of the name of a candidate already submitted to INEC by a political party which stipulates that a cogent and verifiable reasons must be given for the substitution, therefore the purported substitution of the appellant by the 1st respondent is invalid and illegal. It was after the 2nd respondent corrected the substitution by the 1st respondent that the 1st respondent instituted his action. At Page 241 of the record, the trial Court discountenanced the admissions by the 1st respondent but preferred those that were in his favour but refused those that were against the 1st respondent. This is a matter fought on affidavit evidence with attached exhibits; all the materials must be examined together wholly as to arrive at a proper decision. Since the name of the appellant was wrongly substituted having won the primaries and his name forwarded, the appellant was right to have substituted the 1st respondent’s name through the 2nd and 3rd respondents.

In the letter dated 5/2/07, Exhibit SENATOR 4 (P. 104 of the record) the 2nd respondent gave reasons for the substitution, earlier reviewed i.e.

“…the earlier name of the aforementioned constituency was substituted without enough information.”

Since the 1st respondent did not challenge the cogency or verifiability of the reasons for his substitution in the trial Court, the finding by the trial Court was therefore not based on the reliefs sought by the 1st respondent. The learned trial Court also ignored the fact of the appellant having won in the primaries as good enough reason for the substitution, which the 2nd respondent brought to the Notice of the 3rd respondent (INEC) (paragraph 12 of the reply to Further Affidavit and Further and Better Affidavit) PP. 202 -204 of the record).

It is clear from the documents available to this Court that the substitution by the 1st respondent of the appellant was improper, the appellant having won the primary election and no reason given for his removal and substitution. I also hold that the 2nd respondent was right in correcting the substitution by reinstating the appellant with good reasons.

In conclusion, it is within the inherent powers of this Court under S. 16 of the Court of Appeal Act to do what the trial Court Failed to do, as the justice of this case requires it to be done, to determine the case once and for all. The conditions for this power to be exercised include:

(a) Availability of the necessary materials to consider and adjudicate in the matter;

(b) The length of time between the disposal of the action at the trial Court and the hearing of the appeal; and

(c) The interest of justice by eliminating further delay that would arise in the event of remitting the case back to the trial Court for rehearing and the hardship such an order would cause on either or both parties in the case.

In this case the facts and the circumstances support the exercise of this power so that the case is disposed of on its merits one way or the other to save time, which would not be so if this Court sends this matter back to the trial Court to be reheard by the same Court, another Court or in a different form as suggested under the first, fourth and fifth issues by the learned appellant’s Counsel. Inakoju V. Adeleke (2007) 4 NWLR Part 1025 Pt. 427. See Adeyemi V.YRS Ike-Oluwa & Sons Ltd (1993) 8 NWLR (Pt. 309) 27, In RE: Adewumi (1988) 3 NWLR (Pt. 113) 483.

I hold that the trial Court did not properly evaluate and utilize the evidence before the Court and hence did not arrive at a decision based on the documents and Exhibits before the Court. I hereby allow the appeal in part. The judgment of the lower Court is hereby set aside. I make no order as to costs.

I have looked at the grounds of appeal in the 2nd appeal and the issues formulated there from. I am of the opinion that the issues arise from the grounds of appeal which clearly arose from the judgment of the trial Court. In consequence the preliminary objection fails and is hereby struck out.

On issue one, of the second appeal, from the records of Court the 2nd appellant participated in the trial before the lower Court and filed responses to the application and was in the matter till judgment without any complaint of any service of the process complained of. In any case the issue of fair hearing was argued in the 1st appeal in issue 4 where I held that considering the time frame from the time the action was being argued, it was only four (4) days away from the election date. Time was of the essence and that could have given room for lapses on the part of the registry staff that were to effect service on the parties, the trial Court may have overlooked same. This Court would not be doing substantial justice if the entire proceeding is nullified and the case having to start de novo before the trial Court. It would not meet the justice of the case, nor be in the interest of the parties if that is done and me so hold.

It is clear now that winning the party primaries is the first hurdle before one’s name could get to INEC. Even though winning the primaries is an internal affair of the 2nd appellant (PDP), it is a condition precedent to a valid nomination to INEC, where there is no compliance, the person cannot be validly nominated; Ogwa v. Chukwu (2003) 4 NWLR Part 811, Page 174, Melawi V. Five Star Ind. Ltd. (2002) 3 NWLR Part 753 Page 217. When a party is validly nominated then he enjoys protection under S. 34 (2) of the Electoral Act. Having lost in the primaries the 1st respondent should not have been on the list of nominated candidates of the 2nd appellant. The letter of 5/2/07 should supercede the list sent to INEC initially with the name of the 1st respondent as the nominated candidate – Exhibit SENATOR 2 (Page 81 of the record).

The 1st appellant having won the primaries, the 2nd appellant has complied with S. 34 (2) of the Electoral Act in substituting the 1st respondent. The fact that the 1st appellant won the primaries is enough reason which is verifiable and cogent in view of the result of the primary election. In paragraph 4 (i) – (v) of the counter Affidavit filed by INEC (Page 123 of the record) INEC affirmed that the 1st appellant was the nominated candidate of the party, who was duly screened and cleared by INEC. In Amaechi’s case it was held that once a substitution has been accepted by INEC, it cannot be questioned by the Court and that it is INEC that has the responsibility to verify the cogency of the reason given. In this case INEC having accepted the substitution and the reasons by PDP (2nd appellant) the name of the 1st appellant thereafter was published in the final list. I therefore hold that the 1st appellant was the PDP candidate for the Ondo South Senatorial District at the Election.

In my opinion it was not proper for the trial Court to have held that the 1st respondent was not properly Substituted, the 1st Respondent not having complied with the party guidelines and Constitution being an intra party affair by which he is bound.

In conclusion, the appeal by the 1st appellant Hon. (Chief) Olusola Oke succeeds in part. I uphold issues 2, 3, 5 and 6. By upholding issue 6, which is the crux of this case, I hold that the substitution of the appellant by the 1st respondent Senator H. O. Ehinranwo was improper, therefore invalid. The appellant and the 2nd respondent (PDP) were therefore right to have substituted the 1st respondent in line with the party guidelines and Constitution.

The second appeal of the 2nd respondent (PDP) as appellant, also succeeds in part, in upholding issues 2 and 3, the PDP candidate for Ondo South Senatorial District at the Election was the 1st appellant (Hon. (Chief) Olusola Oke) at the ejection of 21/4/07.

I hold that the PDP, the 2nd appellant and INEC (2nd respondent) complied with S. 34 (2) of the Electoral Act in effecting the substitution of the 1st respondent Hon. Chief H. O. Ehinlanwo for the 1st appellant Hon. (Chief) Olusola Oke. In consequence the judgment of the lower Court is hereby set aside.

No order as to costs.

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Other Citations: (2007)LCN/2511(CA)