Senator Hosea Ehinlanwo Vs Chief Olusola Oke & 2 Ors (2008)

LAWGLOBAL HUB Lead Judgment Report

S. N. ONNOGHEN, J.S.C.

This is an appeal against the judgment of the Court of Appeal, holden at Abuja in appeal No.CA/A/112/2007, delivered on the 2nd day of October, 2007, in which it allowed the appeal of the present 1st respondent, then the appellant against the judgment of the Federal High Court holden at Abuja in Suit No. FHC/ABJ/CS/159/2007, delivered on the 18th day of April, 2007, in favour of the plaintiff, now the appellant in this court.

The said Suit No.FHC/ABJ/CS/159/2007, was by way of Originating Summons in which the plaintiff/appellant sought answers to the following questions:’

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 forthcoming Senatorial Election
2. Whether the plaintiff can be substituted/disqualified to contest for the office of the Senatorial Seat in the Ondo South Senatorial Zone after having been cleared by Independent National Electoral Commission (INEC) during its screening exercise

The plaintiff/appellant then sought the following reliefs from the court:-

(a) A declaration that the Peoples Democratic Party (PDP) has no power to remove the name of the appellant 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 forthcoming 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 forthcoming election on the platform of the PDP.

The action was initiated against the 2nd and 3rd respondents only. However, in the course of the proceedings, the 1st respondent was joined as a defendant upon his application to that effect. As stated earlier in his judgment, the trial court granted the reliefs sought resulting in an appeal to the lower court, which court reversed the decision of the trial court. The instant appeal is against the judgment reversing the decision of the trial court.

It is not disputed that on the 2nd day of December, 2006, the appellant and the 1st respondent together with another contestant took part in the 2nd respondent’s primaries to elect and nominate a candidate for the Ondo South Senatorial Seat. The exercise was won by the 1st respondent who scored a total of 2,024 votes as against the appellant’s 323 votes. The 1st respondent thus obtained 75% of the total votes cast at the primary election. The appellant was not satisfied with the result of the election and consequently appealed against same to the relevant committee of the party (PDP) and lost. It is also not disputed that somehow, when the list of the candidates of the 2nd respondent for the National Election comprising candidates of the 2nd respondent throughout the Federation was sent to the 3rd respondent, it was not the name of the 1st respondent that was on the list but that of the appellant as the 2nd respondent’s candidate for Ondo South Senatorial Seat. The appellant was screened by the 3rd respondent. The appellant admitted using the party’s (PDP’s) machinery to effect the change in the nomination of the 1st respondent before the list of nominated candidates was sent to the 3rd respondent.

When the party, 2nd respondent, was later informed that the person who won the primaries for the Senatorial Seat and whose name ought to have been sent to the 3rd respondent was the 1st respondent, a letter dated 5th February, 2007, was written by the 2nd respondent requesting the 3rd respondent to effect a substitution of the name of the 1st respondent for the appellant on the ground that the nomination of the appellant was without enough information as a result of which when the final list of candidates for the elections was published by the 3rd respondent around the 24th day of February, 2007, it was the name of the 1st respondent, rather than that of the appellant that appeared as the candidate for the 2nd respondent in respect of the election to the Ondo South Senatorial Seat. It was the substitution of the 1st respondent for the appellant that resulted in the institution of the action. It must be noted, the letter seeking the substitution dated 5/2/07, did not state the reason for the substitution to be that it was the 1st respondent that won the primary election rather than the appellant.

There are preliminary issues to be determined in this appeal before dealing with the merits or otherwise of the appeal.

The preliminary issues are:-