NJIDEKA EZEIGWE V CHIEF BENSON CHUKS NWAWULU & ORS.

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NJIDEKA EZEIGWE V CHIEF BENSON CHUKS NWAWULU & ORS.

(2010) LCN/4075(SC)

In the Supreme Court of Nigeria

Friday, February 19, 2010


Case Number:SC.261/2008

 

JUSTICES:

DAHIRU MUSDAPHER, JUSTICE SUPREME COURT

WALTER SAMUEL NKANU ONNOGHEN, JUSTICE SUPREME COURT

FRANCIS FEDODE TABAI, JUSTICE SUPREME COURT

IBRAHIM TANKO MUHAMMAD, JUSTICE SUPREME COURT

OLUFUNLOLA OYELOLA ADEKEYE, JUSTICE SUPREME COURT

 

APPELLANT:

NJIDEKA EZEIGWE

 

RESPONDENTS:

1.CHIEF BENSON CHUKS NWAWULU

2.INDEPENDENT NATIONAL ELECTORAL COMMISSION(INEC)

3.PEOPLES DEMOCRATIC PARTY(PDP)

 

RATIO:

SUMMARY OF FACTS:

The 1st respondent claimed at the trial court that he was the proper candidate nominated by PDP. The federal high court struck out the suit for want of jurisdiction. The court of appeal upheld the appeal and upturned the decision of the lower court. The appellant has further appealed. Appeal dismissed 

ISSUES OF DETERMINATION:

1. Whether the Court of Appeal was right to have decided the matter on originating summons. 

2. Whether the Court of Appeal was right to have held that the 1st respondent was wrongly substituted, and, 

3. Whether the Court of Appeal was right to have invoked section 15 of the Court of Appeal Act to decide the matter before it when the appellants were not heard thereon.

COMMENCEMENT OF AN ACTION 

“Originating Summons procedure is adopted where the sole or principal question at issue is, or is likely to be that of the construction of a written law or of any instrument made under any written law; or where there is likely to be no or any substantial dispute of fact law or of any deed, will, contract or other document or some other question relevant to the determination of the issue in controversy”. Per Onnoghen J.S.C.

TIME LIMIT FOR SUBMISSION OF LIST OF CANDIDATES UNDER ELECTORAL ACT 2010

“A political party must submit its list of candidates for any election 120 days before the date appointed by the provisions of the Electoral Act, 2006 for a general election.” Per Onnoghen J.S.C.

DETERMINATION OF CANDIDATES BY POLITICAL PARTIES

“It is settled law that the question of who is a candidate of any political party for any election remains the exclusive preserve of the political parties and that the courts have no jurisdiction to determine the issue”. Per Onnoghen J.S.C.

CONDITIONS FOR SUBSTITUTION OF CANDIDATES UNDER ELECTORAL ACT 2006:

“A political party intending to substitute a candidate for any election except, in the case of the death of the candidate to be substituted must fulfill two conditions; to wit: (a) Inform the Commission (INEC) in writing of the change not later than 60 days to the election; and (b) Give cogent and verifiable reasons in the application for substitution for the intended substitution”. Per Onnoghen J.S.C.

STATUTES REFERRED TO:

1. Electoral Act, 2006

 

WALTER SAMUEL NKANU ONNOGHEN, J.S.C. (Delivering the Judgment by the Court): The appeal is against the judgment of the Court of Appeal, Holden at Enugu in appeal No. CA/E/406/2007 delivered on the 10th day of July 2008 in which the court reversed the decision of the Federal High Court, Holden at Enugu in suit No. FHC/EN/CS/79/2007 to the effect that the court had no jurisdiction to entertain the matter as constituted. The ruling of the trial court giving rise to the appeal before the lower court was rendered on the 2nd day of April, 2007; the facts for the case are largely undisputed.  On the 23rd day of March 2007 the 1st respondent, as plaintiff caused to be issued an originating summons against the 2nd defendant therein for the determination of the following questions:-

‘1. Whether the Defendants statutory power to substitute a nominated candidate of a political party, under section 34 of the Electoral Act 2006, is qualified or absolute?

2. Whether the Defendant has power to substitute a nominated candidate of a political party less than 60 days to the election when the candidate is not dead?

3. Whether the Defendant can substitute a nominated candidate of a political party in the absence of cogent and verifiable reasons?

4. Whether in view of section 36 of the Constitution of the Federal, Republic of Nigeria 1999 and other rules of law relating thereto, the Defendant can fairly and constitutionally determine the cogency and validity of substitution of a nominated candidate without some notice to the candidate or hearing or some form of inquiry from or input by the affected candidate?

5. Whether the legislative innovation introduced for the first time by section 34 of the Electoral Act is not aimed at deepening and strengthening democracy in Nigeria in relation to substitution of a nominated candidate in an election?  In view of the answers to Questions 1, 2, 3, 4 and 5 above:

6. Whether the act of the Defendant in substituting the plaintiff, as the duly nominated candidate of Peoples Democratic Party (PDP) for election into the State House of Assembly in respect of Ogbaru 1 State Constituency of Anambra State in the manner it did is not ultra vires Defendants power, undemocratic, arbitrary, unlawful; illegal, unconstitutional, null and void?’  The reliefs claimed by the plaintiff are as follows:-

‘1. A DECLARATION that the Defendants statutory power to substitute a nominated candidate of a political party under section 34 of the Electoral Act 2006, is qualified AND not absolute.

2. A DECLARATION that the Defendant has NO power to substitute a nominated candidate of a political party less than 60 days to the election when the candidate is not dead.

3. A DECLARATION that the Defendant CANNOT substitute a nominated candidate of a political party in the absence of cogent and verifiable reasons.

4. A DECLARATION that in view of section 36 of the 1999 Constitution the Defendant CANNOT fairly and constitutionally determine the cogency and verifiability of substitution of a nominated candidate without some notice to the candidate or hearing or some form of inquiry from or input by the affected candidate.

5. A DECLARATION that the legislative innovation introduced by section 34 of the Electoral Act is aimed at deepening and sustaining Nigerias democracy in relation to substitution of a nominated candidate in an election.

6. A DECLARATION that the substitution of the plaintiff by the Defendant as the duly nominated candidate of the Peoples’ Democratic Party (PDP) for election into the State House of Assembly in respect of Ogbaru I State Constituency of Anambra State in the manner it did is ultra vires, arbitrary, unlawful, illegal, unconstitutionally null and void.

7. AN ORDER setting aside the purported substitution, same being in excess of the statutory powers of the Defendant, in abuse of power, breach of duty to act fairly, unreasonable, illegal, unconstitutional, null and void.

8. AN ORDER OF MANDATORY INJUNCTION directing the Defendant to restore the plaintiff as the duly nominated candidate of the Peoples’ Democratic Party for election into the State House of Assembly in respect of Ogbaru I State Constituency of Anambra State.’

The above reliefs are said to be grounded on the following:-

‘1. Section 34 of the Electoral Act 2006 only empowers the Defendant to substitute nominated candidates not later than 60 days to election and upon an application giving cogent and verifiable reasons to so do.

2. The purported substitution of the plaintiff by the Defendant is illegal having been effected less than 60 days to the election, when the plaintiff is not dead.

3. Article 13(1) of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act Cap A9 Laws of the Federation of Nigeria 2004 guarantees the right of the plaintiff to freely participate in the government of Nigeria by voting for representatives or presenting himself to be voted for.

4. Being a decision seriously affecting the Plaintiffs right, the Defendant acted in violation of section 36 of the Constitution of the Federal Republic of Nigeria 1999 and the duty on the Defendant to act fairly when it failed to hear the plaintiff or require an input from the plaintiff on the cogency and verifiability of his substitution.

5. The substitution of the plaintiff is arbitrary, unfair, unreasonable, procedurally and substantially ultra vires the statutory powers vested in the 1st Defendant by the Electoral Act and based on improper motive.

6. The Defendant lacks the power to proceed contrary to the provisions of the Constitution and the Electoral Act 2006 and its compliance with the requirement of cogency and verifiability of substitution of a nominated candidate is subject to judicial scrutiny, being a statutory duty.’

The originating summons was supported by a 22 paragraphed affidavit as well as an 8 paragraphed Affidavit of Urgency. There was also a further affidavit filed on 5th day of April, 2007.  By an application filed on 11/4/07, the 2nd and 3rd respondents applied to be joined in the action which application was subsequently granted resulting in another further affidavit filed by the plaintiff on 18th day of April, 2007.  On the 24th day of April, 2007 counsel for the 2nd and 3rd defendants filed a motion on notice at the trial court praying the court for ‘AN ORDER striking out/ dismissing this suit on the ground that this Honourable court lacks the jurisdiction to grant the reliefs which the plaintiff is seeking.’

It is the ruling on the above motion that resulted in the appeal to the lower court and subsequently the further appeal to this Court.  There are three appeals as a result of the judgment of the lower court delivered on the 10th of July, 2008 reversing the ruling of the trial court. The three defendants/respondents before the lower court have each appealed to this Court which appeal was, by an order of this Court consolidated.  The issues for determination in the first appeal, No. S.C.l261/08 as identified by the learned Senior Counsel for the appellant therein, L.O. FAGBEMI ESQ, SAN in the appellants brief of argument deemed filed on 29/6/09 are as follows:-

‘1. Whether the Court of Appeal was right to have decided the matter on originating summons?  (GROUND II)

2. Whether the Court of Appeal was right to have held that the 1st Respondent was wrongly substituted?  (GROUND 3, 5, 6 & 9)

3. Whether the Court of Appeal relied on in-admissible on or in-reliable affidavit and documentary evidence to give judgment in favour of in reliable (sic) affidavit and documentary evidence to give judgment in favour of the 1st Respondent?  (GROUNDS 4, 7 & 8)

4. Whether the Court of Appeal was right to have invoked section 15 of the Court of Appeal Act to decide this matter.  (GROUND 2)

5. Whether the Court of Appeal was right to have given judgment in favour of the 1st Respondent in view of the obvious delay or tardiness of the plaintiff in bringing the action?  (GROUND 10).’

In respect of appeal No. SC/261A/08 learned Senior Counsel for the appellant, DR. O IKPEAZU, SAN, in the appellants brief of argument filed on 8/9/09 submitted the following four issues for determination:

‘1. Whether the learned Justices of the Court of Appeal were not in breach of principle of fair hearing when they relied on section 15 of the Court of Appeal Act, 2004 to make a determination on the merit of the Originating Summons when the Appellant was not heard on that point nor did the Respondents urge them so to do. Ground II,

 2. Whether the learned Justices of the Court of Appeal were wrong when they decided the matter based on originating summons proceedings when the facts as presented by the parties were irreconcilably and materially in conflict. Ground IX.

3. Whether the learned Justices of the Court of Appeal were wrong when in holding that the matter was a pre-election matter proceeded to favourably consider the 1st Respondents case when the 1st Respondent failed to present his case within the appropriate period. Grounds III, IV, VIII.

4. Whether the learned Justices of the Court of Appeal were correct when they held that the evidence before the court justified the Respondents contention that he was duly nominated by the Appellant who did not provide cogent and verifiable reasons for the substitution. Grounds 1, VI, VII and X.’

The issues identified for determination in the third and final appeal No. S.C/261B/08 in the appellants brief prepared by GORDY UCHE ESQ and deemed filed on 23/11/09 are also four. They are as follows:-

‘3.01 Whether the court below right (sic) in its interpretation of section 34(1) of the Electoral Act 2006 when the court held that ‘the purported substitution by the political party made on 5/2/2007 is outside the 60 days to the date of the election which took place on 14/4/2007′ (Ground 1).  3.02 Whether the court below was right in ordering the Appellant to swear in the 1st Respondent as the winner of the said election when no such relief was claimed before the said court, and without allowing parties an opportunity to address the court on such relief (Ground 2)  3.03 Was the court below right in its application of the case of Amaechi vs INEC (2008)5 NWLR (1080) 227 even when the facts of the present case were distinguishable from those in Amaechis case. (Ground 3).  3.04 Was the court below right in entering judgment on the merits in favour of the 1st Respondent in the face of irreconcilable and hotly contested affidavit evidence and when his suit ought not to have been commenced by way of originating summons. (Ground 4).’

When all the issues as formulated by learned counsel for the appellants are considered closely, one cannot escape the irresistible conclusion that they are the same though differently couched or worded. In fact, having regards to the facts of this case and the judgment of the lower court, there is really no need for the three separate appeals when a single one would have resolved the issues in controversy arising from the judgment of the lower court. However, since the right of appeal is a constitutional right, one is compelled to deal with the appeals as filed but parties and counsel ought to realize that nothing is gained by wasting the time of the court with multiple appeals on the same issue when a single one would have been sufficient. It has always been said that repetition does not improve an argument, which saying, I strongly recommend to counsel.  On the other hand, learned Counsel for the 1st respondent in the three appeals formulated three identical issues for the determination of the appeals.

These are as follows:-

‘(i) Was the Court of Appeal right to have decided this matter on the originating summons of the 1st Respondent and by invoking the courts power as preserved under section 15 of the Court of Appeal Act, Cap C.36 Laws of the Federation of Nigeria , 2004.

(ii) Was the substitution of the 1st Respondent by the 2nd and 3rd Respondents based on cogent and verifiable reasons and if not, is the substitution not therefore null and void.

(iii) Were there available and admissible evidence upon which the Court of Appeal proceeded to enter judgment in favour of the 1st Respondent declaring him the duly nominated and elected candidate of the PDP for the 14th April, 2007 election into the Ogbaru I Constituency seat in the Anambra State House of Assembly.’

It should be noted that the 1st respondent filed and argued a preliminary objection in respect of almost each of the appeals. In respect of appeal No. S.C/261/08, the objection relates to appellants issues 1 and 5 which the 1st respondent contends to be issues that have been raised for the first time on appeal and without the leave of the court first had and obtained.  The objection in relation to S.C/261A/08 relates to issue 2 which is also contended to be a fresh issue for which the leave of the court is required and that since no leave was obtained, the court should strike same out.  It should be noted that the trial court struck out the suit of 1st respondent on the ground that it lacks the jurisdiction to entertain same. The court never went into the merits of the matter neither did it decide the issue as to the appropriateness of the commencement of the action by way of originating summons.

When, however, the lower court, upon appeal on the said judgment came to the conclusion that the trial court has jurisdiction to hear and determine the matter, it proceeded under the powers conferred on it by the provisions of section 15 of the Court of Appeal Act, to determine the suit based on the affidavits on record. It is the judgment of the lower court in the circumstances that is  presently on appeal before this Court. The issues being contested before this Court never existed in the decision of the trial court which was on appeal before the lower court and therefore could not have been raised before that court.

The argument of learned Counsel for the 1st Respondent is not that the issues involved facts or mixed law and fact for which the leave of court is required but that they are being raised for the first time in this court for which the leave of the court is required. In the circumstance and having regards to the fact that the issues arise from the decision of the lower court in its exercise of the powers conferred on it by section 15 of the Court of Appeal Act, thereby making it a court of first instance, the issues involved in this case cannot be said to be fresh issues being raised for the first time before this Court. It follows therefore that the appellants do not require the leave of this Court or that of the lower court to raise them in this Court. It would have been a different kettle of fish if the issues were raised and determined at the trial court but not raised and determined by the lower court before being raised, for the first time after the determination by the trial court in this Court. In such a situation, appellants must obtain the leave of this Court before raising same as such an issue would qualify as an issue being raised for the first time before this Court, after the decision of the trial court.  In the circumstance, I find no merit whatsoever in the preliminary objections which are accordingly dismissed in appeal NO. SC/261/08 and S.C/261A/08.

From the record before the Court, it is clear that the 1st respondent together with other candidates, participated in the3rd respondent/appellant (Peoples Democratic Party, PDP) primary election to nominate candidates for election into the Ogbaru I Constituency seat in Anambra State House of Assembly, which took place on 18th November, 2006 which the 1st respondent allegedly won by 184 votes as against the 23 votes allegedly scored by the appellant in S.C/261/08, which placed him second in the contest – see exhibit B.  Following exhibit B, the name of the 1st respondent was duly forwarded to the 2nd respondent/appellant, INEC, by the 3rd respondent/appellant alongside other nominated candidates of the said 3rd respondent as the candidate of the 3rd respondent/appellant for the election which was scheduled for the 14th day of April, 2007 – see exhibit C.

Consequent upon the nomination, the 1st respondent complete all nomination processes with INEC as evidenced in exhibit D as a result of which his name was duly published by INEC vide exhibit E as the 3rd respondents/appellants candidate for Ogbaru I Anambra State Constituency. The 1st respondent subsequently attended screening exercise upon invitation by the 2nd respondent/appellant and was cleared by INEC to contest the said election.  However, by letters dated 5th and 13th February, 2007, the 3rd respondent/appellant wrote to INEC substituting the appellant for the 1st respondent as candidate for the said general election of 14th April, 2007. It is the substitution of the 1st respondent that resulted in the institution of the action culminating in the instant appeal, the reliefs of which I had earlier reproduced in this judgment.

On the other hand, the appellant contends that he is the duly nominated candidate of the 3rd respondent/appellant for the election in issue and that it was his name that was duly displayed for that purpose; that the primary election was not conclusive; that exhibit B is not an authentic document as it did not state the name of the electoral officer as required amongst other short comings such as absence of the names and signatures of the agents of the aspirants; that exhibits D is also not authentic. Appellant however agrees that the substitution was effected by the 3rd respondent/appellant on 5th February, 2007 ‘upon a proper verification of the petitions and after taking into account many factors which will improve the chances of the party at the general election …..’

One however wonders the necessity for the substitution if it was not the name of the 1st respondent but that of the appellant that was initially sent to the 2nd respondent/appellant as the candidate of the 3rd respondent/appellant for the election in question.  Haven reproduced the issues as formulated by counsel for the parties and the basic facts of the case, I am of the view that the issues common to the appellants and relevant for the determination of the appeal are as follows:

1. Whether the Court of Appeal was right to have decided the matter on originating summons.

2. Whether the Court of Appeal was right to have held that the 1st respondent was wrongly substituted, and,

3. Whether the Court of Appeal was right to have invoked section 15 of the Court of Appeal Act to decide the matter before it when the appellants were not heard thereon.

In respect of issue 1, it is the submission of learned Counsel for the appellant in SC/261/08 that the affidavits of the parties conflicted on material facts and as such originating summons was not the proper mode of commencing the action particularly as the 1st respondent claimed that he won the primary election conducted by the 3rd respondent/appellant but stated that the said primary election was inconclusive due to various irregularities; that the name of 1st respondent never got to INEC and that the documents supporting the claim of the plaintiff/1st respondent are not genuine. Citing and relying on order 2 Rule 2(2) of the Federal High Court (Civil Procedure) Rules, 2000; Ossai vs Wakwah (2006) NWLR (Pt. 969) 208 at 227-228; National Bank of Nigeria Ltd vs Alakija (1978) 9 – 10S.C 59 at 71, counsel submitted that to resolve the conflicts in the case of the parties, oral evidence is required thereby rendering originating summons inappropriate in the circumstance.  Learned Senior Counsel for the appellant in S.C/261A/08 treated the matter as his issue No. 2 and submitted that the suit in the Originating Summons is not for interpretation of statutes as required by Order 2 Rule 2(2) of the Federal High Court (Civil Procedure) Rules 2000 but deals with conflicting facts which needed to be resolved at the trial; that the validity of the nomination of 1st respondent was in issue in the case which ought to have been resolved first before proceeding to determine the issue as to whether the letter of substitution complies with the provisions of section 34 of the Electoral Act, 2006; that the lower court, by evaluating the evidence on record, admits that the case presented by the parties conflict with each other and as such Originating Summons was not the right mode of commencing the action.

In respect of S.C/261B/08, learned Counsel for the appellant treated the issue in his issue No.4 and made submissions very similar to those of the other two appellants earlier summarized in this judgment.  On his part, learned Counsel for the 1st respondent SYLVA OGWEMOH ESQ. referred the court to the reliefs claimed by the 1st respondent and Order 2 Rule 2(2) supra and submitted that the cause of action of the 1st respondent is as contained in the Originating Summons and not the contents of the counter affidavit of appellants, relying on Capital Bancorp Ltd vs S.S.L. Ltd (2007) 2 NWLR (pt. 1020) 148 at 170 – 171; Tukur vs Government of Gongola State (1989) 4 NWLR (Pt. 117) 517; Okulate vs Awosanya (2000) 2 NWLR (pt. 646) 530; Emeka vs Emodi (2004) 16 NWLR (Pt. 900) 433; that the action of the 1st respondent seeks the construction of section 34 of the Electoral Act, 2006 and does not qualify as a hostile proceeding; that the case of the 1st respondent being mainly documentary can be effectively determined on affidavit evidence without recourse to oral evidence – relying on Agbakoba vs INEC (2008) 18 NWLR (Pt. 119) 489 at 538; that by the provisions of Order 3 Rule 1(1) of the Federal High Court (Civil Procedure) Rules 2000, failure to comply with the form of commencement of an action is a mere irregularity which is incapable of nullifying, the proceedings or judgment or order; that a challenge of the mode of commencement of an action must be made before any party to the action takes a step in the said action or proceedings; that in instant case, appellants never raised any preliminary objection in any form.

It is settled law that Originating Summons procedure is adopted where the sole or principal question at issue is, or is likely to be that of the construction of a written law or of any instrument made under any written law; or where there is likely to be no or any substantial dispute of fact law or of any deed, will, contract or other document or some other question relevant to the determination of the issue in controversy however, see National Bank of Nigeria Ltd vs. Alakija (1979) 9-10 S.C 59. In the instant case, the appellants contend that the material facts in issue in the action are in conflict and as such the proceeding is a hostile one which ought not to have been commenced by Originating Summons but by an ordinary Writ of Summons. The question is whether they are right.

When one goes through the reliefs claimed in the Originating Summons one cannot resist the conclusion that the main relief is that stated as relief No.6.  ‘A DECLARATION that the substitution of the plaintiff by the 1st Defendant as the duly nominated candidate of the Peoples’ Democratic Party (PDP) for election into the State House of Assembly in respect of Ogbaru I State Constituency of Anambra State in the manner it did is ultra vires, arbitrary, unlawful, illegal, unconstitutional, null and void.’  Grounds 1 and 2 of the grounds on which the reliefs in this case are based are relevant to the consideration of the above relief. The grounds are:

‘1. Section 34 of the Electoral Act 2006 only empowers the Defendant to substitute nominated candidates not later than 60 days to election and upon application giving cogent and verifiable reasons so to do.

2. The purported substitution of the plaintiffs by the Defendant is illegal having been effected less than 60 days to the election, when the plaintiff is not dead.’  Section 34 of the Electoral Act, 2006 makes provisions for the substitution of nominated candidates before the date of an election. I hold the view that an action for a declaration in terms of the relief supra is clearly one that calls for the construction of the provisions of section 34 of the Electoral Act, 2006 in order to determine whether the substitution in question was in compliance with that provision of the Act.

On the sub-issue as to whether the facts relevant to the determination of the case are in conflict thereby rendering Originating Summons an inappropriate mode of commencing the action, it is the contention of the appellants that the fact of nomination of the 1st respondent is in dispute between the parties as well as the authenticity of the documents exhibited to the affidavit in support of the Originating Summons. I do not see any conflict in relation to the relevant facts of the case. In the first place, the issue of validity of the nomination of the 1st respondent is not only irrelevant to the determination of the case but robs the courts of the jurisdiction to determine same as it is still the law that the courts are without jurisdiction to determine the issue of validity of nomination of candidates of any political party. So whether the nomination of the 1st respondent was conclusive as contended by the 1st respondent or inconclusive as contended by the appellants is clearly irrelevant. The question remains who is the candidate of the party sought to be substituted?  However, the fact that is very crucial to the determination of the issue under consideration remains the issue of substitution of the 1st respondent, which fact is not disputed by the parties.

Though the appellant in SC/261/08 has contended that the 1st respondent was never nominated by the party (PDP) as its candidate for the election in question, that contention cannot be correct as one cannot talk of substitution of a candidate who was never nominated by the party. So having agreed that by a letter dated 5/2/2007 the party (PDP) sought to substitute the 1st respondent with the appellant in SC/261/08, it means that by the provisions of the Electoral Act, 2006, the 1st respondent was the duly nominated candidate of the party 120 days to the election in question hence the application for substitution. If the appellant is the nominated candidate, obviously there would be no need for substitution as his name would have been the one sent to INEC 120 days to the election.

It follows therefore that the argument of the parties on the issue of substitution narrows down the matter before the court to the issue as to whether the said substitution was done in compliance with the provisions of section 34 of the Electoral Act, 2006 and nothing more and I hold the considered view that Originating Summons procedure is the appropriate mode of commencing the action and resolve the issue against the appellants in S.C/261/08; S.C/261A/08 and S.C/261B/08.

On the second issue, Learned Senior Counsel for the appellant in S.C/261/08 submitted that the lower court was in error when it held that the substitution of the 1st respondent does not satisfy either of the conditions stated in section 34 of the Electoral Act, 2006; that if the lower court had painstakingly examined the documentary evidence before it, it would have come to a different conclusion on the matter; that the letter of 5/2/07 applying for the substitution was within 60 days to the election of 14th April, 2007 – the same applies to the letter of 13/2/07 – and that the lower court was in error when it found  and held that the substitution was not done within 60 days of the election; that the reason for the lower court holding that there was no cogent and verifiable reason for the substitution is that the substitution is unfair to the 1st respondent when the concept of ‘fairness’ is alien to the provisions of section 34 of the Electoral Act, 2006; that the lower court also misconstrued the contents of the letter of substitution; that ‘The letter did not say that the enquiry was inconclusive. It only states that the panel conducted extensive enquiries on the allegations but because there was a death of time to conduct fresh primaries it recommended that the appellant be nominated as a consensus candidate of the party. This we submit is cogent and also verifiable,…. that primary election is not the only mode of nominating a candidate for an election as the lower court seems to have held; that it is within the province of a political party to nominate its candidate to any election and the mode of nomination includes the choosing of a consensus candidate.  In arguing the issue, Learned Senior Counsel for the appellant in S.C/261A/08 made submissions similar to that of the learned Senior Counsel for the appellants in S.C/261/08 and further submitted that ‘where a political party states that its primaries were beset with intimidation, unauthorized alteration of the names of delegates as compiled by the political party in its list of candidates and buying of votes, as a basis for nullification of the faulted election, the reasons are not only cogent but clearly verifiable, …’; that the lower court read into the provision of the Act the requirement that a person should be ‘involved or indicted’ before a substitution made after due inquiry by a political party could be deemed cogent and verifiable contrary to the decision in Ladoja vs INEC (2007) 12 NWLR (Pt. 1047) 119.

It is the submission of learned Counsel for the appellant in S.C/261B/08 that the lower court was in error in its interpretation of the provisions of section 34(1) of the Electoral Act, 2006 as the substitution was made within the time stipulated by law.  On his part, Learned Counsel for the 1st respondent referred the court to the provisions of section 34 of the Electoral Act, 2006 and contents of exhibits 1 & 2 (letters of substitution) and submitted that the exhibits do not contain cogent and verifiable reasons for the substitution; that the reasons given for the substitution of the 1st respondent are similar to those given in the case of Agbakoba vs INEC supra, which this Court had held not to be cogent and verifiable.  On the sub-issue as to whether the substitution was done within 60 days of the election, learned Counsel stated that the appellants have not denied the averment in paragraph II of the supporting affidavit to the effect that the 1st respondent was substituted less than 60 days to the election as what is not denied is deemed admitted; that the date of receipt of exhibits 1& 2 are not stated thereon thereby making the letters suspect and urge the court to resolve the issue against the appellants. It is to be noted that the 1st respondent filed and argued a respondents notice to the effect that the court affirms the holding by the lower court that the substitution of the 1st respondent was not done within 60 days of the election on grounds other than those stated in the judgment of the lower court.  In arguing the notice, learned Counsel submitted that there are many reasons on record to show that 1st respondents substitution was done outside the 60 days allowed by law, which include the following:  (a) that as at 13/2/07 when 1st respondent visited the office of INEC at Abuja

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