ISA MOHAMMED WABU & ANOR v. HON.MOHAMMED GARBA GOLOLO & ORS
(2019)LCN/13836(CA)
In The Court of Appeal of Nigeria
On Friday, the 1st day of November, 2019
CA/J/EPT/NAHR/BA/374/2019
RATIO
PROVE OF FORGED DOCUMENT: NO NEED TO PROVE THAT A PERSON FORGED IT, BUT THERE IS NEED TO PROVE BEYOND REASONABLE DOUBT THAT THE DOCUMENT THE PERSON PRESENTED WAS FORGED
I have earlier stated that all five issues of appellants are interwoven and simply amount to whether the trial tribunal was right to have dismissed the petition for lacking in merit. I shall now proceed to answer that question by first reemphasizing that, appellants, to succeed in their allegation of disqualification of 1st respondent on grounds of his having presented forged documents to 3rd Respondent (INEC) does not have to prove that he was the one who actually forged the said documents. All they need prove, beyond reasonable doubt, is that the said documents he presented were forged. That much was settled in Saleh v. Abah (2017) 12 NWLR (Pt. 1578) 100 at 153 (SC) where it was said that:
In the con of Section 66(1)(i) of the Constitution of the Federal Republic of Nigeria, 1999, the burden of proof placed on a person who asserts that another person presented a forged certificate to INEC is proof that the certificate was forged and it was presented to the Independent National Electoral Commission (INEC). And in proving the presentation of the forged certificate to INEC, the person asserting the positive does not have the duty to prove that the person who presented the forged certificate was guilty of forgery, but that he made the presentation in the first place and that the certificate has been proved beyond reasonable doubt to be forged. That is the intendment of the spirit of Section 66(1)(i) of the Constitution and nothing more should be added to it since the words of the provision are simple, clear and unambiguous.
PER BOLOUKUROMO MOSES UGO, J.C.A.
THE EFFECT OF A CANDIDATE PRESENTING A FORGED DOCUMENT TO INEC MEANS THAT HE IS DISQUALIFIED, SECTION 65, 66 OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA
Now, from the clear provisions of Section 66 of the 1999 Constitution of this country further explained by the cases cited above, there is no doubt that presentation of forged documents to INEC by a candidate for any election under the Constitution, including House of Representatives election, disqualifies him, and that is regardless of whether such candidate possessed the qualifications set out by Section 65 of the same Constitution. First is Section 65 of the 1999 Constitution (which makes itself subject to 66) reads:
S.65 (1) Subject to the provisions of Section 66 of this Constitution, a person shall be qualified for election as a member of:
(a)..
(b) The House of Representatives, if he is a citizen of Nigeria and has attained the age of twenty-five years (previously thirty years).
(2) A person shall be qualified for election under Subsection (1) of this Section if ?
(a) If he has been educated up to at least the School certificate level or its equivalent; and
(b) He is a member of a political party and is sponsored by that party.
Section 66 of the Constitution with the marginal note ?Disqualifications? on the other hand states thus:
66. ? No person shall be qualified for election to the Senate or House of Representatives if …………………………………………..
(i)He has presented a forged certificate to the Independent National Electoral Commission. PER BOLOUKUROMO MOSES UGO, J.C.A.
THE EFFECT OF SOMETHING BEING MADE SUBJECT TO ANOTHER
When something is made subject to another it means it is inferior to and controlled by the thing to which it is subject, just like a subject is always inferior to its head. That is also the position with Sections 65 and 66 of the 1999 Constitution. As far back as 2012, this Court has explained this relationship between them when it said (Abba-Aji, JCA, as he then was) in Ibe & Anor v. Igbokwe & Ors (2012) LPELR-15351 (CA) at page 34-35 that:
The petition was anchored on Section 66(1) (h) of the 1999 Constitution as amended which provides as follows: 66(1) ?No person shall be qualified for election to the Senate or House of Representatives if?(h) he has presented a forged certificate to the Independent National Electoral Commission.
The Supreme Court in the case of Ucha v. Onwe (2011) ALL FWLR (PT 580) 1227 @ 1295, (2011) 4 NWLR (PT 1237) 386 @ 427 upheld the provision of Section 66(1) (h) of the 1999 Constitution aforesaid as a disqualifying factor.. PER BOLOUKUROMO MOSES UGO, J.C.A.
DEFINITION OF FORGERY AND FORMS OF FORGERY
First, what constitutes forgery in law? In Agi v. PDP (2016) LPELR-42578 (SC) P.115 it was defined (M.D. Muhammad, JSC) thus:
The act of making a false document or altering a genuine one for same to be used (see Black?s Law Dictionary, 8th Edition) is what forgery is. (Emphasis mine)
This definition makes it clear that forgery takes either of two forms. It could be the making of a false document, in which case there would be no genuine one to be tendered to make a comparison. The other form of forgery is altering of a genuine document to be used as real. It is this form that envisages and involves the existence of both a genuine and false version of the same document. PER BOLOUKUROMO MOSES UGO, J.C.A.
FORGED DOCUMENTS: PROOF: BEST EVIDENCE TO PROVE FORGERY
On that, the law is now well settled that the best evidence to prove forgery of certificate is a report from the institution that purportedly issued it: see Mohammed v. Wammako (2018) 7 NWLR (PT 1619) 573 @ 590 (S.C.), Maihaja v. Gaidam (2018) LPELR-42474 (SC) p.54. In this case appellants not only subpoenaed witnesses from the very institutions, LASU and NYSC, which 1st Respondent claimed issued him the alleged forged certificates, those witnesses (P.W.2. and P.W.3) additionally tendered certificates and certified true copies of documents issued by their institutions to support appellants? contention that they, LASU and NYSC, did not issue 1st Respondent the certificates he presented to INEC. In fact P.W.2 (Olabode Akinrimade) from Lagos state University (LASU) even stated that his school does not run and has never run the particular Masters in Business Administration 1st Respondent claims to have obtained degree from it. In its Exhibit G1 dated 1/1/18 and titled Request for Verification and Authentication of Results Mohammed Garba Gololo, LASU wrote as follows:
Kindly refer to your letter to the Registrar dated 17th August, 2018 on the above subject.
I confirm that the document forwarded to us for verification did not emanate from our Institution. We also do not have a record of Mr. Mohammed Garba Gololo running the Bachelor of Science in Business Administration and Masters of Business Administration in our Institution.
This letter is signed by LASUs Registrar/Secretary of Council, one AMUNI Mohammed Olayinka and certified by the A.C.E.O. Legal of its Legal Unit, one Semawon A. Akinyanmi. LASU did not stop at that but also tendered through P.W.2 certified true copies of its Convocation Brochures containing the list of its grandaunts for the years 1st Respondent claims to have bagged his Bachelor and Masters degrees from it. First Respondent?s name is conspicuously absent from those brochures. PER BOLOUKUROMO MOSES UGO, J.C.A.
JUSTICES
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria
Between
1. ISA MOHAMMED WABU
2. NEW NIGERIA PEOPLES PARTY (NNPP) – Appellant(s)
AND
1. HON. MOHAMMED GARBA GOLOLO
2. ALL PROGRESSIVES CONGRESS (APC)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) – Respondent(s)
BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): On the 23rd day of February 2019, General Elections into the House of Representatives were conducted by 3rd Respondent (INEC) across the country including Gamawa Federal Constituency of Bauchi State. First Appellant and 1st Respondent were candidates in the Gamawa Federal Constituency election, just as they were four years back in 2015. It is a requirement of the Electoral Act 2010 under which they contested the said election that each candidate submits to INEC Form CF001 containing particulars of their qualification for the election. Section 65 of the 1999 Constitution of the Federal Republic of Nigeria spells out those qualifications – namely nationality, age and minimum level of education obtained – while Section 66 of the Constitution enumerates factors or circumstances that will disqualify even a candidate who possesses the qualifications in Section 65. One of the disqualifying factors is presentation of a forged document by a candidate to INEC.
?It is common ground that 1st appellant and 1st respondent filled the said form CF001 and submitted it along with their
1
certificates to INEC for both the 2015 and 2019 elections. Among the certificates 1st Respondent presented to INEC for both elections are a Bachelor of Science (B.sc) and Masters in Business Administration (MBA) degrees he claimed to have obtained from the Lagos State University (LASU) in 2002 and 2005. He also presented to INEC on both occasions National Youth Service Corp (NYSC) Discharge Certificate dated September 2003.
In the election, which eventually held on 23rd February 2019, 1st Respondent was declared elected and returned by INEC, he having polled majority votes of 16,605, as against 1st Appellant who came second with 12, 748 votes.
?Appellants being of the opinion that the Bachelor of Science (B.sc) and Masters in Business Administration (MBA) degrees and the National Youth Service Corp (NYSC) Discharge Certificates 1st Respondent presented to INEC to contest the elections were all forged so he was disqualified from contesting, petitioned the State and National Assembly Election Tribunal sitting in Bauchi to challenge his election on that sole ground. All three Respondents filed Replies to the Petition and trial proceeded.
2
First appellant testified in support of the allegation and called three other witnesses including officials of Lagos State University (LASU) and National Youth Service Corp (NYSC) on subpoena to attest to the fact that the certificates presented by 1st Respondent to INEC for the election did not emanate from their organizations. The said officials, P.W.2 and P.W.3, also tendered relevant documents certified by their institutions to back up their assertions.
First respondent did not testify personally in defence of the petition and its allegation that he presented forged documents to INEC, he simply called one witness in Mr. Sani Danlami (D.W.1), principal of his post primary Institution, Barewa College, Zaria, to say that he (1st Respondent)
