ISHAYA IKPIRI ACHANGAT V. REV. MATHIAS AKUBAWOK KUTAI & ORS
(2010)LCN/3906(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 29th day of June, 2010
CA/J/EP/HA/40/2009
RATIO
STANDARD OF PROOF REQUIRED TO PROVE AN ALLEGATION OF CRIME IN AN ELECTION PETITION OR MATTER
In an election petition or matter, proof of an election malpractice or irregularity or misconduct depends on the nature of the conduct complained of. When the allegation relates to a wrong doing, proof would be on preponderance of evidence. Where however the allegation borders on the commission of a crime, the standard of proof would be beyond reasonable doubt. Ogu Vs. Ekweremadu 2006 1 NWLR (part 961) 255; INEC Vs. Abubakar 2009 8 NWLR (Part 1143) 259; Dantiye Vs. Kanya 2009 4 NWLR Part 1130 13. It is noteworthy that the case of INEC Vs. Ray (supra) relied upon by the trial tribunal agrees with the above preposition. See 121 – 122 per Ogunbiyi JCA; “I would at this stage as a matter of convenience wish to dispose of the aspect of the argument by the learned appellant’s counsel wherein he submitted that the allegation on the petition is of a criminal incrimination and nature under Section 120 of the Election Act and therefore must be proved beyond reasonable doubt as provided under Section 138 of the Evidence Act. Without much ado, it is manifestly evident that having regard to the complaint by the petitioner as spelt out supra, same simply restates that the 2nd respondent Emma Maduabu did not score the majority of lawful votes cast at the election. There is no specific criminal allegations made against any of the parties on the records before us………………… From the intendment of Section 138(1) of the Evidence Act it is our law that whenever the commission of a criminal offence is in issue in a case whether civil or criminal, it must be proved beyond reasonable doubt The said Section 138(1) of the Act which reads as fellows; (1) “If the commission of crime by a party to any proceeding is directly in issue in any proceeding civil or criminal it must be proved beyond reasonable doubt”. In the case under reference their Lordships therefore resolved the issue in favour of the findings that there was no commission of crime directly in issue and consequent to which it was not necessary for the tribunal to have directed the prove of that before them beyond reasonable doubt”. (Emphasis mine). It is therefore now trite that where there are allegations of crime in an election petition such allegations are required to be proved beyond reasonable doubt in accordance with Section 138(1) and (2) of the Evidence Act. See Wali Vs. Bafarawa 2004 16 NWLR (Part 898)1; Anozie Vs. Obiche 2006 8 NWLR (Part 981) 142; Ayogu Vs. Nnamani 2006 8 NWLR (Part 981) 166. PER ZAINAB A. BULKACHUWA, J.C.A
PROVISIONS OF THE EVIDENCE ACT AS TO THE BURDEN PLACED ON A PERSON WHO DESIRES A COURT TO GIVE JUDGMENT AS TO ANY RIGHT OR LIABILITY DEPENDENT ON EXISTENCE OF FACTS WHICH HE ASSERTS
By virtue of the provisions of sections 135 and 136 of the Evidence Act, whoever desires court to give judgment as to any right or liability dependent on existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said the burden of proof rests on him. The burden of proof will also lie on a person who would fail if no evidence were given on the other side – see Elemo Vs. Omolade 1968 NMLR 359; Baruwa v. Osoba 1997 3 NWLR (Part 492) 164; Opigo v. Yukwe 1997 6 NWLR (Part 509) 428; U.B.A. Ltd. v. Ademuyiwa 1999 11 NWLR Part 628 570. PER ZAINAB A. BULKACHUWA, J.C.A
INTERPRETATION OF STATUTE: INTERPRETATION OF THE PROVISIONS OF SECTION 106(C) OF THE CONSTITUTION AS TO WHETHER A CANDIDATE CAN PRODUCE A DIPLOMA CERTIFICATE FOR COMMUNITY HEALTH SUPERVISORS TO SHOW THAT HE IS ACADEMICALLY QUALIFIED FOR ELECTION AS A MEMBER OF THE HOUSE OF ASSEMBLY
The appellant produced a Diploma Certificate for Community health Supervisors to show that he was qualified and has satisfied the provisions of Section 106(c) of the Constitution. Section 106 (c) of the Constitution states that: “Subject to the provision of Section 107 of this Constitution, a person shall be qualified for election as a member of the House of Assembly if- (c) He has been educated up to at least the School Certificate Level or its equivalent – And Section 318(1) on Interpretation: “School Certificate or its equivalent means- (a) A Secondary School Certificate or its equivalent, or Grade II Teachers Certificate, the city and Guilds Certificate; or (b) Education up to Secondary School Certificate Level; or (c) Primary Six School Leaving Certificate or its equivalent- According to Section 318 (1) of the Constitution, Secondary School Certificate or its equivalent also means Primary Six School Leaving Certificate. The interpretation given to Secondary School Certificate is so wide as to accommodate almost anyone. To my mind a Diploma Certificate for Community Health Supervisors which the appellant holds is a higher qualification than Primary Six School Leaving Certificate. Once a candidate can speak the English language and INEC is satisfied, such a candidate is qualified. The appellant is qualified academically to be the representative of Rukuba/Irigwe Constituency in the Plateau State House of Assembly. The appellant has satisfied the requirement of section 106 of the Constitution. PER BODE RHODES-VIVOUR, J.C.A.
JUSTICES:
ZAINAB A. BULKACHUWA Justice of The Court of Appeal of Nigeria
BODE RHODES-VIVOUR Justice of The Court of Appeal of Nigeria
ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria
Between
ISHAYA IKPIRI ACHANGAT – Appellant(s)
AND
1. REV. MATHIAS AKUBAWOK UTAI
2. DEMOCRATIC PEOPLES PARTY
3. THE INDEPENDENT NATIONAL
ELECTORAL COMMISSION
4. RETURNING OFFICER,
RUKUBA/IRIGWE CONSTITUENCY
IN THE ELECTION INTO PLATEAU
STATE HOUSE OF ASSEMBLY
5. THE ELECTORAL OFFICER,
BASSA LOCAL GOVERNMENT AREA
6. MR. JEJEA. A. KUCHA – Respondent(s)
ZAINAB A. BULKACHUWA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Election Petition Tribunal constituted to handle the petition that emanated from the Re-run Election of Rukuba/Irigwe Constituency into the Plateau State House of Assembly which took place on the 26th day of July, 2008 following the judgment of this Court nullifying the election and return of the 1st respondent in the election that was held on the 14th day of April, 2007.
Before the lower tribunal the 1st and 2nd respondents, as petitioners therein, filed a petition challenging the return of the appellant (Ishaya Ikpiri Achangat) as the duly elected member into the Plateau State House of Assembly from Rukuba/Irigwe Constituency on the grounds that the appellant was not qualified to contest the election, having not been educated up to at least the school certificate level or its equivalent and that the appellant presented a forged Primary School Leaving Certificate to the Independent National Electoral Commission (INEC).
The matter went to trial and in a considered judgment of the lower tribunal delivered on the 12/2/2009 the election of the appellant was nullified on the grounds stated in the petition, and an order made that INEC conduct a fresh election within 90 days for the Rukuba/Irigwe Constituency into the Plateau State House of Assembly.
Being dissatisfied with the decision the appellant/1st respondent to the petition has now appealed to this court on ten grounds of appeal filed on the 4/3/2009.
The petitioners also filed a notice of cross appeal on the 5/3/2009 of three grounds challenging the order of the lower tribunal, refusing to declare and return the petitioners as duly elected. Parties, as is the practice in this court filed and exchanged their respective briefs of argument.
In the appellant’s brief these issues were identified;
(1) Whether in the light of the evidence before it, which evidence it refused or omitted to use, the lower tribunal was right to hold that the appellant was not qualified to contest the election into the Plateau State House of Assembly for the Rukuba/Irigwe Constituency?
(2) Whether the lower tribunal was right in coming to the conclusion that Exhibit 22 was forged on the balance of probability?
(3) Whether the lower tribunal was right in expunging Exhibit 24 from the record of proceedings for the reason that it was not specifically pleaded?
(4) Whether the lower tribunal was right in discountenancing Exhibit 25 for the reason that it contradicted Exhibit 23?
The 1st and 2nd respondents identified these issues in their brief of argument;
(1) Whether the decision/finding by the lower tribunal that the appellant was not qualified to contest the election into the Plateau State House of Assembly is correct?
(2) Whether the lower tribunal was right in finding that the burden of proof of whether the appellant attended ECWA Transferred School is one to be discharged on a balance of probabilities is correct?
(3) Whether the tribunal was right to have expunged Exhibit 24 and discountenancing Exhibit 25 and whether by so doing the appellant has suffered any miscarriage of justice?
The 3rd – 5th respondents in the substantive appeal adopted and argued on the issues raised by the appellant.
The 6th respondent raised these issues;
(1) Whether the lower tribunal was right in arriving at the finding/decision that the appellant was not qualified to contest the election into the Plateau State House of Assembly.
(2) Whether the lower tribunal was right in finding that the appellant never attended ECWA Transferred School, Zawan.
The issues formulated by the appellant covers all the grounds of appeal. I will adopt them in determining this appeal. However all the issues relate to the finding of the lower tribunal upholding the grounds of the petition that the appellant lacks the basic educational qualification to contest the election for Rukuba/Irigwe Constituency into the Plateau State House of Assembly.
The first issue is the principal issue while all the remaining three issues relate to it as they are based on the documents considered by the tribunal in arriving at its decision. I will in the circumstances concentrate on the main issue and touch on the other issues where necessary.
The grounds of the petition as they relate to the appellant to be found at page 5 of the record reads:
“(1) The 1st respondent was not qualified to contest the election, having not been educated up to at least the School Certificate level or its equivalent.
(2) The 1st respondent presented a forged Primary School Leaving Certificate to the 2nd respondent”.
The respondents replied respectively to the petition, and after issues were joined trial commenced wherein the petitioners called eight witnesses and tendered some exhibits, the 1st respondent to the petition called three witnesses, also tendered exhibits, the 2nd – 4th respondent called one withness while the 5th respondent called two witnesses,all tendered exhibit. The documents which are on issue in this appeal are;
Exhibit 22 – Primary School Certificate
Exhibit 23 -Testimonial issued by the School of Health Technology.
Exhibit 24 – Diploma Certificate issued to Ikpiri Achangat in July, 1999.
Exhibit 25 – Certificate for Community Health Attendants.
These documents are all in the name of the appellant and were tendered before the tribunal across the bar with consent of counsels.
Exhibits 7 and 8 tendered by counsel for the petitioners across the bar are the photo copies of exhibits 23 and 24 respectively.
The appellant in his brief of argument based his arguments on Exhibits 7 and 8 i.e. the School of Health Technology Testimonial and the Diploma Certificate for Community Health Supervisors to submit that the said exhibits satisfy the requirement of qualification as laid down in Section 106(c) of the 1999 Constitution of the Federal Republic of Nigeria as defined under Section 318 thereof. Pointing out that the qualification under Exhibit 8 (exhibit 24) obtained from a post secondary institution is higher than a Primary School Certificate and satisfies the provision in Section 106 of the Constitution.
The 1st and 2nd respondents are of the view that from the state of pleadings of the parties the appellant had never attended a Secondary School and the issue that remained to be determined was whether Exhibit 7 (23) is an equivalent of a secondary or postsecondary school qualification. They submitted that by the testimony of the PW6 they had shown that as at 1983 when the appellant obtained his certificate the College of Health Technology Pankshin was not a secondary school. That the burden of proof then shifts on the appellant to show that the certificate awarded to him is equivalent to that of a secondary school and the lower tribunal was right in finding that he had failed to discharge that burden. That the said certificates Exhibits 7 and 8 (23 and 24) do not satisfy the requirement of Section 106 as defined by Section 318 of the 1999 Constitution.
The 2nd ground of the petition relates to Exhibit 22 and the lower tribunal in its judgment made a finding at pages 374 and 375 of the record thus;
“It is our view that if what we are to determine is whether the 1st respondent forged the certificate of Primary School Education issued to him, which was admitted as Exhibit 22 and which Exhibit is the original copy of Exhibits 1 and 10, tendered by the petitioners, and he presented same to the 2nd respondent, then the commission of a crime is directly in issue by the parties and the burden of proof required would be proof beyond reasonable doubt as per the provisions of Section 138 of the Evidence Act (Supra).
However if what is to be proved and determined primarily is that the respondent did not attend ECWA Transferred School as he claimed, then the burden of proof that Exhibit 22 which he presented to the 2nd respondent was not genuine would be on the “preponderance of evidence” and “not proof beyond reasonable doubt”. See Mogaji V. Odofin 1975 4 SC 92; Omoboriowo vs. Ajasin 1984 1 SCNLR 108. The case of Ntoe Ansa Vs Chief Archibong Ishie (supra) cited by learned counsel for the 1st respondent actually supports this proposition of the law. In the said case, it was held that describing a document in a criminal language as in the instant case where Exhibit 20 is described as a forged certificate, does not criminalize the forged certificate, does not criminalize the document such as to require a proof beyond reasonable doubt.
It is our well considered view that if from the totality of the evidence adduced it is established that the 1st respondent did not attend ECWA Transferred School as he claims then the petitioner would have succeeded on the preponderance of evidence in establishing that what was presented to the 2nd respondent was not the true evidence of the 1st respondents Primary School Education any right from it”.
The above finding was based on the case of INEC Vs. Ray 2004 (Part 892) 92.
From the above the lower tribunal arrived at the conclusion that exhibit 22 was forged.
In an election petition or matter, proof of an election malpractice or irregularity or misconduct depends on the nature of the conduct complained of. When the allegation relates to a wrong doing, proof would be on preponderance of evidence. Where however the allegation borders on the commission of a crime, the standard of proof would be beyond reasonable doubt. Ogu Vs. Ekweremadu 2006 1 NWLR (part 961) 255; INEC Vs. Abubakar 2009 8 NWLR (Part 1143) 259; Dantiye Vs. Kanya 2009 4 NWLR Part 1130 13.
It is noteworthy that the case of INEC Vs. Ray (supra) relied upon by the trial tribunal agrees with the above preposition. See 121 – 122 per Ogunbiyi JCA;
“I would at this stage as a matter of convenience wish to dispose of the aspect of the argument by the learned appellant’s counsel wherein he submitted that the allegation on the petition is of a criminal incrimination and nature under Section 120 of the Election Act and therefore must be proved beyond reasonable doubt as provided under Section 138 of the Evidence Act.
Without much ado, it is manifestly evident that having regard to the complaint by the petitioner as spelt out supra, same simply restates that the 2nd respondent Emma Maduabu did not score the majority of lawful votes cast at the election. There is no specific criminal allegations made against any of the parties on the records before us………………… From the intendment of Section 138(1) of the Evidence Act it is our law that whenever the commission of a criminal offence is in issue in a case whether civil or criminal, it must be proved beyond reasonable doubt The said Section 138(1) of the Act which reads as fellows;
(1) “If the commission of crime by a party to any proceeding is directly in issue in any proceeding civil or criminal it must be proved beyond reasonable doubt”.
In the case under reference their Lordships therefore resolved the issue in favour of the findings that there was no commission of crime directly in issue and consequent to which it was not necessary for the tribunal to have directed the prove of that before them beyond reasonable doubt”. (Emphasis mine).
It is therefore now trite that where there are allegations of crime in an election petition such allegations are required to be proved beyond reasonable doubt in accordance with Section 138(1) and (2) of the Evidence Act. See Wali Vs. Bafarawa 2004 16 NWLR (Part 898)1; Anozie Vs. Obiche 2006 8 NWLR (Part 981) 142; Ayogu Vs. Nnamani 2006 8 NWLR (Part 981) 166.
In the instant case the 2nd ground of the petition was that Exhibit 22 as presented to INEC by the appellant was forged. This is a specific allegation of the commission of a criminal offence, it is directly in issue as a finding on it will one way or the other determine the petition and where found liable the appellant will be subjected to a conviction. The proof of the allegation should therefore be beyond reasonable doubt as in all criminal matters.
The lower tribunal in the circumstances was wrong to have held at page 375 of the records that;
“In staking this option, we also rely on the case of INEC Vs. Ray 2004 NWLR (Part 892) at page 92 where it was held that it is not in every allegation of crime that a party must move to prove beyond reasonable doubt. Such allegation of crime must be directly in issue to require proof beyond reasonable doubt”.
And its finding at page 376 of the records to wit;
“in the circumstances, we uphold the submission of learned counsel for the petitioners that from the preponderance of evidence, it has been established that the 1st respondent did not attend ECWA Transferred School, Zagun”. cannot stand. The petitioners have to adduce such evidence to show that the appellant forged exhibit 22. There being no such evidence the lower tribunal was wrong to make a finding that the said exhibit was forged and be satisfied that evidence in proof need not be beyond reasonable doubt. The 2nd issue is accordingly resolved in favour of the appellant.
I now return to issue one. The contention therein is that the appellant does not possess the minimal educational qualification to enable him contest as member into the Plateau State House of Assembly. That exhibit 7 and 8 (23 and 24) are not equivalent to at least the School Certificate level as required by Section 106 (c) and defined by Section 318 of the 1999 Nigeria Constitution. The said provision as reproduced hereunder for ease of reference;
“106. Subject to the provision of Section 107 of this Constitution, a person shall be qualified for election as a member of a House of Assembly if-
(a)…………….
(b)…………….
(c) He has been educated up to at least the School Certificate level or its equivalent; and
(d) ………………..
Section 318(a)
“School Certificate or its equivalent” means
(a) a Secondary School Certificate or its equivalent, or Grade II Teachers Certificate, the City and Guilds Certificate; or
(b) education up to Secondary Schools Certificate level; or
(c) primary Six School Leaving Certificate or its equivalent and –
(i) service in the public or private sector in the Federation in any capacity acceptable to the Independent National Election Commission for a minimum of ten years and
(ii) attendance at courses and training in such institutions as may be acceptable to the Independent National Electoral Commission for periods totaling up to a minimum of one year; and
(iii) the ability to read, write, understand and communicate in the English language to the satisfaction of the Independent National Electoral Commission; and
(iv) any other qualification acceptable by the independent National Electoral Commission.
My understanding of the provisions of Section 106 is that a candidate must possess the minimum of a School Certificate Level (i.e. secondary school certificate as defined by Section 318 or its equivalent). There is no definition of equivalent in the Constitution.
The only answer on the definition of ‘equivalent’ can best be found in the INEC Affidavit in support of Personal Particulars of Persons seeking election. Wherein in column B(2) Secondary Schools (include Teachers, Commercial, Technical and equivalent institutions) See Exhibit 5.
Exhibit 7 (23) was identified by the PW6 the Deputy Registrar of the College of Health Technology, Pankshin as a Certificate issued to the appellant by the school as a graduate of Community Health Assistant.
The RW4 in his testimony also said he verified the documents submitted by the appellant and came to the conclusion that they qualified him to contest the election.
The appellant had never claimed both in his pleadings and statement on oath which adopted before the lower tribunal that he attended any secondary school and the lower tribunal made a finding on that.
He presented his Health Technology Certificate as the equivalent of a Secondary School Certificate envisaged by the provisions of the Constitution, to succeed in its petition that the appellant was not so qualified the petitioners must prove that the said certificate is not what is contemplated by the provisions of the Constitution. This, the petitioners failed to do and could therefore not be entitled to the relief sought under ground one of the petition.
By virtue of the provisions of sections 135 and 136 of the Evidence Act, whoever desires court to give judgment as to any right or liability dependent on existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said the burden of proof rests on him. The burden of proof will also lie on a person who would fail if no evidence were given on the other side – see Elemo Vs. Omolade 1968 NMLR 359; Baruwa v. Osoba 1997 3 NWLR (Part 492) 164; Opigo v. Yukwe 1997 6 NWLR (Part 509) 428; U.B.A. Ltd. v. Ademuyiwa 1999 11 NWLR Part 628 570.
In the instant case the burden is on the petitioner to prove before the lower tribunal that exhibit 23 which was accepted by INEC who cleared the appellant to stand for the election is not the educational qualification envisaged by the provisions of Section 106(c) of the 1999 Constitution.
Having failed to discharge that burden they cannot be entitled to judgment.
The trial tribunal was in the circumstances wrong in shifting the burden of proof on the appellant as the petitioners have not proved the grounds of the petition against the 1st respondent.
Having arrived at the above conclusion, the two remaining issues become academic.
The appellant was qualified to stand the election for Rukuba/Irigwe Constituency into the Plateau State House of Assembly. The lower tribunal’s decision delivered on the 12/2/2009 nullifying the re-election conducted on the 26/7/2008 is hereby set aside.
The election of the appellant as member representing Rukuba/Irigwe Constancy into the Plateau State House of Assembly is hereby affirmed.
Having arrived at the above conclusion, the cross appeal has been overtaken by events. It is accordingly dismissed.
Cost of N30,000.00 to the appellant against the 1st and 2nd respondents.
BODE RHODES-VIVOUR, J.C.A.: I read before now the judgment just delivered by my Learned Brother Bulkachuwa JCA. I agree with the reasoning and conclusion in the judgment.
This is an appeal from the decision of the tribunal nullifying the election of the appellant on the ground that he was not qualified to contest the election because he was not educated up to School Certificate level or its equivalent.
The appellant produced a Diploma Certificate for Community health Supervisors to show that he was qualified and has satisfied the provisions of Section 106(c) of the Constitution. Section 106 (c) of the Constitution states that:
“Subject to the provision of Section 107 of this Constitution, a person shall be qualified for election as a member of the House of Assembly if-
(c) He has been educated up to at least the School Certificate Level or its equivalent –
And Section 318(1) on Interpretation:
“School Certificate or its equivalent means-
(a) A Secondary School Certificate or its equivalent, or Grade II Teachers Certificate, the city and Guilds Certificate; or
(b) Education up to Secondary School Certificate Level; or
(c) Primary Six School Leaving Certificate or its equivalent-
According to Section 318 (1) of the Constitution, Secondary School Certificate or its equivalent also means Primary Six School Leaving Certificate. The interpretation given to Secondary School Certificate is so wide as to accommodate almost anyone. To my mind a Diploma Certificate for Community Health Supervisors which the appellant holds is a higher qualification than Primary Six School Leaving Certificate. Once a candidate can speak the English language and INEC is satisfied, such a candidate is qualified. The appellant is qualified academically to be the representative of Rukuba/Irigwe Constituency in the Plateau State House of Assembly. The appellant has satisfied the requirement of section 106 of the Constitution. For this and the much fuller reasons in the leading judgment I agree entirely with the conclusions of Justice Z. A. Bulkachuwa.The election of the appellant representing Rukuba/Irigwe Constituency in Plateau State House Assembly is affirmed. The cross appeal is dismissed.
ABUBAKAR DATTI YAHAYA, J.C.A.: I have read before now, the judgment of my learned brother, BULKACHUWA JCA, just delivered. The issues had been exhaustively considered and resolved in a detailed analysis of the subject. I therefore agree with his reasoning and conclusions reached therein. The appeal has merit and it succeeds. I also set aside the judgment of the lower tribunal of the 12/2/2009 and affirm the election of the appellant into the Rukuba/Irigwe Constituency, Plateau State. I abide by the orders made therein.
Appearances
Joshua John with D.P. Dusu For Appellant
AND
O Akobundu with V. Damulak 1st – 2nd Respondent/Cross-Appellant
Stephen Ibyem for 3rd-5th Respondents and 2nd – 4th Cross Respondent
6th Respondent absent and unrepresented For Respondent
