ALH. KASHIM IBRAHIM IMAM & ORS v. SENATOR ALI MODU SHERIFF & ORS(2004)

ALH. KASHIM IBRAHIM IMAM & ORS v. SENATOR ALI MODU SHERIFF & ORS

(2004)LCN/1604(CA)

In The Court of Appeal of Nigeria

On Thursday, the 24th day of June, 2004

CA/J/68/2004

 

JUSTICES

ALOMA MARIAM MUKHTAR   Justice of The Court of Appeal of Nigeria

OLUDADE OLADAPO OBADINA   Justice of The Court of Appeal of Nigeria

AMIRU SANUSI   Justice of The Court of Appeal of Nigeria

IFEYINWA CECILIA NZEAKO   Justice of The Court of Appeal of Nigeria

IKECHI FRANCIS OGBUAGU   Justice of The Court of Appeal of Nigeria

Between

 

  1. ALH.KASHIM IBRAHIM IMAM
    2. ALH. IBRAHIM UMAR KIDA
    3. PEOPLES DEMOCRATIC PARTY Appellant(s)

AND

  1. SENATOR ALI MODU SHERIFF
    2. ALH. ADAMU DIBAL
    3. INDEPENDENT NATIONAL ELECTORAL COMMISSION
    4. THE RESIDENT ELECTORAL COMMISSION BORNO STATE
    5. THE RETURNING OFFICER, BORNO STATE GUBERNATORIAL ELECTION
    6. ELECTORAL OFFICER, NGALA L.G.A.
    7. ELECTORAL OFICER, GUBIO L.G.A.
    8. ELECTORAL OFFICER, MAIDUGURI METROPOLITAN
    9. RETURNING OFFICER, NGETRA WARD NGALA L.G.A.
    10. THE RETURNING OFFICER, WULGO WARD NAGAL L.G.A.
    11. THE RETURNING OFFICER, DUFU WARD NGALA L.G.A.
    12. THE RETURNING OFFICER, WARSHALE WARD, NGALA L.G.A. Respondent(s)

OGBUAGU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision/judgment of the National Assembly/Governorship and Legislative Houses Election Tribunal for Borno State sitting at Maiduguri delivered on 2nd March, 2004 – Coram: Hon. Justice Kulu Aliyu – Chairman, Hon. Justice N.P. Emehelu, Hon. Justice L.M. Bako, Hon. Justice M.O. Oyanna and Hon. Justice I.I. Ejiofor – members.
The facts of the case briefly stated are that the appellants are the petitioners before the Election Tribunal for Borno, State. They jointly filed the petition challenging the election and return of the 1st and 2nd respondents as Governor and Deputy Governor respectively of Borno State in the election to the office of Governor of Borno State which took place on 19th April, 2003.
The 1st and 2nd petitioners/appellants, were candidates sponsored by the 3rd appellant – Peoples Democratic Party (PDP) while the 1st and 2nd respondents, were candidates sponsored by the All Nigeria Peoples Party (ANPP).
At the end of the said election, the 3rd respondent, declared and returned the 1st and 2nd respondents as winners or duly elected having scored a total of 581,880 votes as against 341,537 votes scored Dissatisfied with the result of the election, the appellants filed the petition on 19th May, 2003, challenging the return of the 1st and 2nd respondents mainly on three (3) grounds – namely, non-qualification and disqualification; the election being invalid by reasons of being fraught with numerous illegalities, corrupt practices and non-compliance with the provisions of the Electoral Act; and that the 1st and 2nd respondents, were not duly elected by a majority of lawful votes cast at the election.
Issues were joined by the respondents in their pleadings. At the trial, the petitioners/appellants, called four (4) witnesses and filed a counter-affidavit to the affidavit of one Mr. Ian Wilfred Goatman. The petitioners/appellants (hereinafter called the “the appellants”), and the 3rd respondent – INEC led evidence. While the 3rd to 12th respondents called one (1) witness, the 1st and 2nd respondents, rested their case on that of the appellants and relied on the said affidavit of Mr. Goatman which was deposed to pursuant to the application by Ali, Esq. (SAN) and was granted by the tribunal, on 13th December, 2003.
The tribunal, after the written addresses of the learned counsel for the parties, in a considered judgment, dismissed the petition. Aggrieved/dissatisfied with the said decision(s), the appellants have appealed to this court.
There are two (2) notices of appeal filed by the appellants. The first one is that filed on 14th January, 2004 containing four (4) grounds of appeal which read as follows:
“1. The learned trial Judges of the Election Tribunal erred in law when they admitted petitioners (sic) INEC Forms CF001 and CF002 which are not specifically pleaded nor facts relating to the documents pleaded in the petition and replies of the respondent and thereby occasioned surprises and miscarriage of justice.
Particulars of Error
(a) The law is that parties as well as the court are bound by their pleadings and documents not pleaded are not admissible.
(b) The Forms CF001 and CF002 are not evidence of facts pleaded.
(c) Neither of the parties pleaded facts of INEC forms and the documents attached therewith.
(d) None of the witnesses to the petitioners was asked or confronted with any of the documents.
2. The learned trial Judges of the Elections (sic) Tribunal erred in law when they admitted the respondents (sic) (meaning respondents’) INEC Forms CF001 and CF002, statement of result of Borno Teachers College for 2nd respondent, tax clearance certificates, Government Comprehensive Secondary Barna, (sic), West African Examinations Council Ordinary level, tax clearance certificate of the 1st respondent as evidence at the trial, when none of the parties pleaded any of the documents. Indeed parties pleaded specific educational qualifications and thereby occasioned a grave surprise and miscarriage of justice.
Particulars of Error
(a) These documents introduced new issues and elements into the case of the parties.
(b) The court has (sic) consistently in previous rulings refused documents sought to be tendered by the petitioners (sic) witnesses.
(c) None of the petitioners (sic) witnesses including the Chairman of the third petitioner was cross examined on these documents.
(d) The document (sic) is not relevant facts upon which issues are joined.
3. The learned trial Judges of the Elections (sic) Tribunal erred in law when they permitted and allowed counsel of the 3rd to 12th respondents who had participated in the trial of the petition from inception of hearing to change position and become a witness to lead evidence of the 3rd to 12th respondents as a witness in the matter contrary to principles of fairness, justice and fair hearing established under section 36 of the Constitution of the Federal Republic of Nigeria, 1999.
Particulars of Error
(a) DW1 (Ibrahim K. Bawa, Esq.) is not a party in the proceedings but appeared as one of the counsel to 3rd to 12th respondents.
(b) The said Ibrahim K. Bawa, Esq. is not a legal adviser to the 3rd to 12th respondents but counsel who appeared for the 3rd to 12th respondents.
(c) The said DW 1 was in court (sic) throughout the proceedings and listened to all the witnesses before he appeared as a witness to the 3rd to 12th respondents.
The learned trial Judges of the Elections (sic) Tribunal erred in law in admitting documents not pleaded by either of the parties, and upon which issues were not joined on fact and the court (sic) refused failed and omitted to consider and apply the decisions of superior courts referred to the tribunal in submission.
Particulars of Error
(a) The court (sic) is bound by the decisions of the Court of Appeal and Supreme Court referred to in the submissions.
(b) Issues were not joined by the parties in respect of documents admitted as no facts were pleaded in respect of same by either of the parties.”
The reliefs sought in the said notice of appeal, are:
To: i. Allow the appeal.
ii. Set aside the ruling of the Honourable Tribunal.
iii. Reject the INEC Forms CF001 and CF002 in respect of the 1st and 2nd petitioners and INEC Forms CF001 and CF002 in respect of 1st and 2nd respondents together with all the unpleaded documents contained therein.
The next one is that filed on 12th March, 2004 containing therein, seventeen (17) grounds of appeal which read as fellows:
“1. The learned trial Judges of the Election Tribunal erred in law when they held as follows:
‘There is therefore no doubt that the allegation against a party that he submitted forged certificate is a criminal allegation going by the definition of forgery in section 363 of the Penal Code and the punishment for using forged documents, in section 366 of the same Code, so also the case of Ukpo v. Adede (2002) 13 NWLR (Pt. 755) 671. The allegation in paragraph 16(1) of the petitioners petition against the 1st respondent is a criminal allegation. Now what is the position of the law with regards to standard of proof required to discharge the burden in a criminal allegation? Section 138 of the Evidence Act”.
Particulars of Error in Law:
(a) Section 182 (1)(f) of the Constitution of the Federal Republic of Nigeria, 1999 specially (sic) provides for a disqualification of a “candidate who has presented a forged certificate” (not that he the candidate forged the certificate) as a ground for challenging an election.
(b) The Constitution does not impose any penal provision, it did not prescribed (sic) any sentence and the provision does not permit incorporation of specific provision of Panel Code by reference as ventured by the tribunal.
(c) All the elements of criminal offence under section 366 of the Penal Code are absent in section 182 of the Constitution and the election cannot (sic) ascribe criminality by interpretative exercise.
(d) The standard of proof in all matters listed in section 182 of the Constitution is on the balance of probability since no crime is an issue.
In the Alternative:
2. The learned Judges of the Election Tribunal erred in law when they, held that the petitioners did not prove the allegation of presentation of forged certificate by the 1st respondent beyond reasonable doubt when there are uncontradicted facts which constitute the ingredient of the allegation.
Particulars of Error in Law:
(a) Presence of uncontradiction evidence on the record was sufficient to prove the allegation as the standard required was not proof beyond every iota of doubt.
(b) Election tribunal being suis (sic) (it is sui) generis can not (sic) rewrite the allegation against the 1st respondent.
3. The learned Judges of the Election Tribunal erred in law when they held that the petitioners did not plead facts upon which the evidence of, non existence of, non accreditation and non approval of “center for economic and Political Studies, London and “the center for economic and political studies in association with Business Language School London” who purportedly issue (sic) exhibit (sic) C & C1 were based.
Particulars of Error in Law:
(a) Evidence at variance with pleadings implied evidence unrelated to the facts stated in the pleadings not evidence explaining the facts in issue, the Judges thereby misconceived the role of pleadings.
(b) The pleadings of the petitioners were sufficiently clear, the respondents countered the pleadings. The petitioner (sic) (it is petitioners’) evidence related to pleading of all the parties on the issue in controversy (sic) (it is controversy).
(c) The petitioners were not obliged to plead evidence with which to prove the facts pleaded in pleadings settled (sic) neither did the respondents ask for further and better particulars.
(d) The decision of the Judges occasioned a grave miscarriage of justice.
The learned Judges of the Election Tribunal erred in law when they held as follows:
“The evidence of PW1 as quoted above is full of contradiction (sic) while at one stage in examination-in-chief, the witnesses said the schools do not exist but under cross-examination, he said the schools exist in England. He again said the sources of his information he mentioned are not only sources. It therefore followings that his source of information as to the existence of the schools is not exhaustive and therefore not conclusive that the school that issued exhibits C and C1 does not exist”.
Particulars of Error in Law:
(a) The evidence relating to incorporated companies given by the witness is not the same as “the Center of Economic and Political Studies either alone or in association with business language school”.
The case before the tribunal was that “Center for Political and Economic Studies” which issued exhibits (sic) C and C1 did not exist as a school not the incorporated companies, which did not issue certificates.
(b) The tribunal Judges misconceived the evidence and came to wrong conclusion and this occasioned a grave miscarriage of justice.
5. The learned Judges of the Election Tribunal erred in law in failing to consider the oral evidence of PW2 on oath together with the attached documents. The conclusion that the affidavit evidence of the witness and the documents attached are unhelpful to the case of the petitioner (sic) to the case of the petitioner is perverse.
Particulars of Error in Law:
(a) The learned Judges selectively considered only evidence that are unfavourable to the petitioners they destroyed them (sic) and failed to consider every evidence in favour of the petitioners (sic) (i.e. petitioners’) case.
(b) The documents and the affidavit evidence of PW2 laid bare the non existent (sic) (meaning existence) of any school, institution or training college who allegedly issued exhibits (sic) C and C1 which were regarded as invalid.
6. The learned Judges of the Election Tribunal misdirected themselves on facts on the interpretation given to record of the Government of Borno State without proper advertence to other relevant documents before the tribunal and they came to a wrong conclusion and thereby occasioned a grave miscarriage of justice.
Particulars of Misdirection:
(a) The tribunal Judge (sic) failed to take into consideration evidence which are relevant to the case of the petitioner (sic) on the certificate. The conclusion that the school “center for economic and political studies existed is perverse.’
7. The learned Judges of the Election Tribunal erred in law in their interpretation of section 91(3) of the Evidence Act by taking into consideration irrelevant matters and thereby came to wrong conclusions contrary to well settled interpretation given by the Supreme Court in the case of Anyaebosi v. R.T. Briscoe (Nig.) Ltd. (1987) 3 NWLR (Pt.59) 84, (1987) 6 SC (sic) (the page is not supplied) (but it is at page 15 and it is also reported in (1987) NSCC (Pt. II) Vol. 13 page 805 at 823).
8. The learned Judges of the Election Tribunal erred in law when they held that the evidence of PW4 is full of contradictions such that no reasonable tribunal will believe it when such contradictions as to the issues in controversy were not identified and when the evidence considered as contradiction is inconsequential and without relevance to the matter under investigation and thereby, occasioned a grave miscarriage of justice.
9. Learned Judges of the Election Tribunal erred when they held as follows-
“Exhibits F & F1 are original of exhibits (sic) B & B1, C & C1 exhibits (sic) F & F1 have the stamp and seal of the School Center of Economic and Political Studies London W2…. it has not been proved that the 1st respondent fraudulently and dishonestly submitted forged certificates to the 3rd respondent with the knowledge or having reason to believe that the certificates were forged no element of forgery has been proved”.
Particulars of Error in Law:
(a) The Judges have no duty to make a case different from that placed before the tribunal, the holding demonstrated new case made by the tribunal.
(b) The acceptance of the respondent’s (sic) evidence as the truth was in violation of rules for evaluation of evidence and thereby occasioned miscarriage of justice as the evidence was most unreliable and false.
(c) There is sufficient evidence on the record which proved the allegation that the certificate, (sic) exhibits (sic) C & C 1 were evidence of forgery.
10. The learned Judges of the Election Tribunal erred in law when they held that the issue of the 1st respondents (sic) (i.e. respondent’s) minimum educational qualification was not specifically pleaded by the petitioners when the tribunal had the lines before stated thus (sic) “the petitioners in para. 15 of their petition state that the 1st and 2nd respondents were not qualified to run for the office of the Governor and Deputy Governor respectively at the time of the election…” and thereby came to wrong conclusions on pleadings and the law.
11. The learned Judges of the Election Tribunal erred in law when they held that the 1st respondent possesses the minimum educational qualification to contest the election when there is common evidence that the 1st respondent had Primary Six Certificate, Diploma Certificates exhibits C and C1 for a training programme of 10 months and a senator of three years all of which fell short of section 318 of the Constitution (sic). (the italics mine).
Particulars of Error in Law:
(a) The Judges are bound by the provision of the Constitution.
(b) There is uncontradicted evidence that exhibits (sic) C and C1 were neither evaluable nor equivalent of West African School Certificate, Grade II Teacher etc., as defined by section 318 of the Constitution.
(c) The conclusion by the tribunal is without evidence and the Judges of Election Tribunal (sic) misunderstood and misinterpreted the provisions of the Constitution.
12. The learned Judges of the Election Tribunal erred in law when they held thus “it is therefore clear that it is not the respondent that refused to produce the document but rather the petitioners counsel who refused to collect the document” when the document subpoenaed (sic) to be produced was Grade II Teacher Certificate and counsel to the respondents produced statement of result which neither party pleaded, the holding of the court (sic) is perverse and unfortunate.
13. The learned Judges of the Election Tribunal erred in law when they held among others.
“But in the present case in the petition before us, the basis on which exhibits (sic) H and H1, J & J1 were admitted was on the facts pleaded in the petition and the replies. See paragraphs 15(1) and 16(ii) and (iii) of the 3rd – 12th respondents (sic) reply,” and thereby came to wrong conclusions that the document (sic) exhibit (sic) H and H1, J and J1 were admissible particularly when none of the parties pleaded the documents and the tribunal had been consistent in its ruling (sic) against the petitioners that any documents not specifically pleaded were inadmissible.”
14. The learned Judges of the Election Tribunal erred in law when they held that the petitioners did not lead evidence to show that the 2nd respondent did not posses (sic) Grade II Teacher Certificate by going to Borno Teacher’s College to investigate whether or not the 2nd respondent went to the school, and thereby wrongly shifted the onus of proof on the petitioners.
Particulars of Error in Law:
(a) There is evidence of PW3 which was neither cross-examined (sic) nor contradicted that the 2nd respondent did not posses (sic) Grade II Teacher (sic) Certificate which he claimed to contest the election.
(b) The respondents were served with subpoenas duces tecum by the tribunal, which ordered them to specifically produce Grade II Teacher (sic) Certificate submitted by the 2nd respondent and none of them could produce any such certificate.
(c) The Judges wrongly placed additional burden of proof on the petitioners when the 2nd respondent refused and failed to give evidence and indeed abandoned his pleadings.
15. The learned Judges of the Election Tribunal erred in law when they relied on documents allegedly attached to INEC nomination forms when neither the form nor the alleged Borno State Grade II Teacher (sic) Certificate examination statement of result were admissible in law.
Particulars of Error in Law:
(a) Parties are bound by their pleadings none of the parties pleaded statement of result of any school and parties joined issue, specifically, on Teacher (sic) Grade II Certificate.
(b) The documents’ exhibits J and J1 are photocopies of public documents, not in the custody of the petitioners not certified by the issuing authorities and the originals were not tendered at trial.
(c) The decision is perverse as these irrelevant documents were taken into consideration.
16. The learned Judges of the Election Tribunal misdirected themselves when they held that the 1st and 2nd respondents were qualified to contest the election as Governor and Deputy Governor when they did not posses (sic) the minimum educational qualification as stated by section 318 of the Constitution of the Federal Republic of Nigeria, 1999.
Particulars of Error in Law:
(a) The learned Judges are bound to give effect to provisions of the Constitution and they failed to do in this case (sic).
(b) The learned Judge (sic) relied on evidence which were irrelevant and unfounded in the pleadings.
(c) The evidence admitted and acted upon were inadmissible at law and the court (sic) was bound by decisions of superior court on the character of the evidence.
(d) The Judges refused to advert to relevant laws referred to by the petitioners on the issue of admissible evidence.
17. The decision is against the weight of evidence.”
The reliefs sought in this court, are:
(i) An order allowing the appeal.
(ii) An order setting aside the judgment of the Election Tribunal.
(iii) An order granting the reliefs claimed in the petition and order fresh election.
In other words, there are now, two (2) and not three (3) subsisting notices of appeal as stated in the brief of the 1st and 2nd respondents. In the two (2) there are twenty one (21) grounds of appeal.
I note that in No. 4.00 of the appellants’ brief at page 8, they have sought leave, to abandon and accordingly abandons the earlier notices of grounds of appeal dated 9th December, 2003, 24th December, 2003 and 5th March, 2004 respectively. Leave is hereby and accordingly granted. The said notices of appeal are hereby struck out.
It seems to me, that there appear to be some confusion/mistake in the numbering of some of the pages of the records including some of those appearing in the “Index of Particulars”.
The parties have filed and exchanged their respective brief of argument in accordance with Order 6 rules (2),(4) and (5) of the Court of Appeal Rules, 2002.
The appellants have formulated four (4) issues for determination, namely,
(1) Whether the Judges of the Election Tribunal correctly determined the issue of allegation of presentation of forged certificates.
(2) Whether the learned Judges of the Election Tribunal were right when they admitted and acted on exhibits H, H1, J & J1 and all the attached documents to H, H1, J and J1.
(3) Whether the Judges of the tribunal were right when they concluded that the 1st respondent possessed minimum educational qualification under sections 177 and 318 of the Constitution of the Federal Republic of Nigeria, 1999.
(4) Whether the Judges of the Election Tribunal were correct when they held that the 2nd respondent possessed the Grade II Teachers Certificate, with which he was cleared to contest and indeed contested the election as Deputy Governor, of the 1st respondent on 10th day of April, 2003.
It is noted by me that issue No.1 is married with or covers grounds 1,2,3,4,5,6, and 9 of the grounds of appeal, while issue No.2, relates to the four(4) grounds contained in the said notice of appeal dated 14th January, 2004 and grounds 13 and 15 of the said notice of appeal dated 12th March, 2004.
Issue No.3 “encapsulates” grounds 7,10,11 and 17 while issue No.4 relates to grounds 12, 14, 15 and 16.
The 1st and 2nd respondents on their part, have formulated four (4) issues for determination, namely,
1. Whether the learned Judges of the trial tribunal did not correctly determine the issue of allegation of presentation of forged certificates by the 1st respondent by holding that the allegation has criminal connotation.
2. Whether their Lordships of the trial tribunal were not right having regard to the pleadings to have admitted in evidence and acted on exhibits H, H1, J & J1 when there was no miscarriage of justice by such admission.
3. Whether the learned Judges of the trial tribunal were not right having regard to the circumstances of this case to have held that the 1st respondent possesses the minimum qualifications to entitle him to contest for the governorship election in Borno State.
4. Whether the learned Judges of the trial tribunal were not right to have held that the 2nd respondent possesses a Teachers College Certificate that the 3rd respondent used to clear him to contest for the position of Deputy Governor of Borno State (sic).
It is noted also by me, that in the marriage of the above issues, issue No.1 covers grounds 1, 2, 3, 4, 5, 6, 8 and 9 in the notice of appeal filed on 12th March, 2004.
Issue No.2 covers grounds 1, 2, 3 and 4 in the notice of appeal filed on 14th January, 2004.
Issue No.3 is covered by grounds 7, 10, 11 and 17 of the notice of appeal of 12th March, 2004 while issue No.4 is covered by grounds 12, 14, 15 and 16 of the same notice of appeal, of 12th March, 2004.
The 3rd to 12th respondents have formulated also four (4) issues for determination, namely,
1. Whether the various findings of the tribunal on the issue of presentation of forged certificates were correct in law.
2. Whether the tribunal was right when it held that issues were not joined on the minimum educational qualification of the 1st respondent, and in any event whether he had the minimum educational qualification to contest the election.
3. Whether the appellants discharged the burden of proving that the 2nd respondent does not possess minimum educational qualification to contest the election.
4. Whether having regards (sic) to the state of pleadings, exhibits H, H1, J and J1 with all the attached documents were admissible in law.
It is noted by me, that issue No.1 covers grounds 1 to 9 of the said notice of appeal filed on 12th March, 2004 while issue No.2 covers grounds 10 and 11 of the same notice of appeal as in issue No.1.
Issue No.3 relates to grounds 12, 14, 15 and 16 of the same notice of appeal as in issue Nos. 1 and 2 while issue No.4 relates to only ground 13 of the above notice of appeal and the four (4) grounds of appeal in the notice of appeal filed on the said 14th January, 2004.
I note/observe, that the appellants did not say anything about the notice of appeal dated 6th January, 2004 but filed on 7th January, 2004 – See pages 390 – 393 of the records. Since the appellants did not formulate any issue(s) covered or relating to the two (2) grounds of appeal contained therein, and have neither advanced any argument in respect thereof nor applied to this court to also abandon them, I take it, that the, said notice of appeal, by implication or inference, have been abandoned by them. I hereby deem the same as abandoned.
It is now settled, that a ground of appeal not having any argument proffered to cover it either in the brief or orally, is deemed abandoned. See Alhaji Are & Anor. v. Ipaye & Anor. (1986) 3 NWLR (Pt. 29) 416 at 418 CA; Chukwuogor v. Obuora (1987) 3 NWLR (Pt. 61) 454 at 479; Akinsaya v. Longman (1996) 3 NWLR (Pt. 436) 303; Adepate v. Babatunde (2002) 4 NWLR (Pt. 756) 99 and many others.
This is why, where a ground of appeal is withdrawn or not canvassed in the brief, it is deemed as having been abandoned. See Comptoir Commercial v. Ogun State & Anor. (2002) 9 LLRCN 903 at 920.
It is therefore, surprising to me, as noted by me hereinabove in this judgment, that the learned leading counsel for the 1st and 2nd respondents, stated at page 33 of their brief, that there are (3) three subsisting notices of appeal. In the circumstances, I also hereby and accordingly, strike out the said notice of appeal.
When this appeal came up for hearing on 20th May, 2004, Chief Awomolo, A. S. (SAN) -learned counsel for the appellants, appearing with five (5) other learned counsel, moved one (1) non-contentious application to amend their brief dated 10th May, 2004 and filed on 11th May, 2004. Same was granted. He filed the amended brief of the appellants on the orders of the court, that same day – 24th May, 2004.
In respect of another motion to amend dated 13th May, 2004 and filed on 14th May, 2004, which was contentious, oral arguments of the learned counsel for the parties, were heard by the court.
In a considered ruling delivered by the court on the same day, the said application was refused and the same was dismissed.
Thereafter Ali, Y.O. Esq. (SAN) – learned counsel for the 1st and 2nd respondents, appearing with ten (10) other learned counsel, withdrew their notice of preliminary objection dated 30th April, 2004 and filed on 4th May, 2004. He said it was an error on their part.
Since there was no objection to the withdrawal, the same was accordingly struck out.
Ali, Esq. (SAN), then referred to their notice of preliminary objection which he told the court, was incorporated in their brief of argument filed on 31st March, 2004. He adopted the arguments as contained at pages 30-32 therein.
In respect of the appeal proper, Chief Awomolo (SAN), adopted their said amended brief. He applied to make some additions – i.e. to add the case of Alhaji M. Dikko Yusuf & 2 Ors. v. Chief Olusegun Obasanjo & Ors. – Sc. 193/2003 delivered on 7/5/2004 – case No. 10 is on their list of authorities and relied on page 12 of the said judgment.
Secondly, to add at page 29 thereof, cases Nos. 10, 12, 13 and 14 in the additional authorities.
He then made oral submissions in amplification and/or support of their said brief in respect of the said four (4) issues. He urged the court to allow the appeal. He told the court that they filed the appellants/respondents’ reply brief. I note that same was filed on 15th March, 2004. He adopted the same “in toto”. He referred to cases Nos. 5, 6 and 7 of the additional authorities and urged the court to dismiss or disregard the preliminary objection. He had, while dealing with issue No.2, referred to the case of Hon. Justice Araka v. Hon, Justice Don Egbue (2003) 17 NWLR (Pt.848) 1, (2003) 7 SCNJ 75 at 84 (sic) (it is at p. 114) as regards the purpose of “certification”.
Ali, Esq. (SAN) – the leading counsel for the 1st and 2nd respondents, told the court that the 1st and 2nd respondent’s filed their brief of argument, on 31st March, 2004. He adopted the same.
He again referred to the objections raised at pages 30-32 of the brief and cases Nos. 1 and 2 on the list of additional authorities as regards the way the grounds of appeal are couched. He stated that if the court sustained the objection, then issues 1, 3 and 4 married to all the grounds to which they took the objection, go.
In respect of the appeal proper, he also made oral submissions in support and/or amplification of the said four (4) issues in their brief.
While dealing with the issue of standard of proof in relation to the use of the words “forged documents” by the petitioners/appellants, he referred to the cases of Dr. (Senator) Ukpo v. Mr. Adede & 10 Ors. (2002) 3 NWLR (Pt. 755) 671 at 678 CA. (case No.6 in their list of authorities) and the unreported case of Alliance For Democracy v. Peter Ayodele Fayose & 4 Ors. – suit No. CA/IL/EP/ GOV/1/2004 delivered on 28th April, 2004. Comment: The one copy made available to the court by Mr. Ali (SAN) – vide his letter, is dated 7th May, 2004 – per Nsofor, JCA.
In respect of issue No.4, he referred to the case of Matori v. Bauchi (2004) All FWLR (Pt. 197) 1010 at 1055. He finally urged the court to dismiss the appeal. He informed the court that he had prepared their brief, based on a record sent to him which pagination appears different from the one in court.
Okupe, A.A., Esq. – learned counsel for the 3rd to 12th respondents, appearing with Zanna, W. Esq., told the court that their clients filed their brief of argument on 31st March, 2004. He adopted the same and referred to the supplementary list of authorities filed by them on 19th April, 2004. He urged the court to insert at page 56 last line of their brief., the case of Owena Bank Ltd. v. Etoile Commerciale S.A. (1995) 1 WLR 44; 51 A-C; F-G ((Privy Council) as to allegations of fraud/forgery committed abroad which must first of all, be determined by the foreign court. He made submissions mainly in respect of the allegation of forgery and referred to page 53 of their brief.
As regards evaluation of evidence, he referred to the case of Bayo v. Njidda & 59 Ors. (2004) 8 NWLR (Pt. 876) 544, (2004) FWLR (Pt. 192) 10 at 78 CA to the effect, that a statement of result, satisfied the minimum qualification. He finally urged the court to dismiss the appeal as being unmeritorious.
Chief Awomolo (SAN), told the court that in the reply to the 3rd to 12th respondents’ submissions, they filed a reply brief on 15th April, 2004 and not March as appears on the stamp of this court’s registry. That this is the same position as regards their reply to the submissions in the brief of the 1st and 2nd respondents.
I note that the registry stamp on the two reply briefs for all the respondents, shows 15th March, 2004, but under it, entered in red, is the date of 15th April, 2004.
Chief Awomolo (SAN) again urged the court to allow the appeal. With the end of submissions, judgment was reserved till today.
As can be seen in this judgment, I have reproduced all the twenty one (21) grounds of appeal so that the real issues in controversy may be appreciated. As far as I am concerned, the main issues relate to qualification and non-qualification, admissibility of documents, and evaluation of evidence by the tribunal.
But before going into the main appeal, I will deal with the preliminary objection. The complaint, is that the grounds of appeal are “argumentative, vague, general in terms having no valid particulars subjoined and in many instances, the particulars are distinct complaints and do not support nor bear relationship with the grounds”.
It is submitted that grounds 1, 3, 5, 11, 13, 14 and 16 of the notice of appeal dated 12th March, 2004, are all argumentative and incompetent. That ground 1, 8, 9, 12 and 13, are general in terms and evasive. That the particulars sub-joined to grounds 2, 6, 9, 15 and 16, are not supportable of the grounds and many of the particulars are distinct complaints.
That grounds 7, 8, 10 and 12, have no particulars thereby making the grounds evasive and inchoate.
It is submitted that any ground of appeal that is not in conformity with or filed in breach of the provisions of Order 3 rules 2(2), (3) and (4) of the Court of Appeal Rules, 2002, are invalid and liable to be struck out. That all the said grounds stated above, suffer serious infractions of the said rules of the court.
The case of Amuda v. Alhaji Adelodun (1994) 8 NWLR (Pt. 360) 23, 31 – (it is also reported in (1994) 9 SCNJ 59) – per Adio, JSC, is reproduced wherein, the case of Globe Fishing Industries Ltd. & 4 Ors. v. Chief Coker (1990) 7 NWLR (Pt. 162) 265 (it is also reported in (1990) 11 SCNJ 56), is referred to.
Mr. Ali (SAN) also cited and relied on the case of A.S.R. Co. Ltd. v. (i.e. Ajeokuta Steel Co. Nig. Ltd.) v. O.O. Biosah (it is O.O. Biosah & Co. Nig. Ltd). (1997) 11NWLR (Pt. 527) 145 at 156-157 C.A., paras. G-A – per Salami, JCA and reproduced and therein referring to the case of Honika Sawmill (Nig.) Ltd. v. Mary Okejie (sic) (it is Okojie) Hoff (1994) 2 NWLR (Pt. 326) 252 at 262 (it is also reported in (1994) 2 SCNJ 86).
He also cited and relied on the case of Oge v. Ede (1995) 5 NWLR (Pt. 385) (sic) (it is 385) 564 at 577 and 584 C.A.
It is the submission that based on the various objections raised to the grounds of appeal, the grounds are liable to be struck out and issues formulated on the alleged defective grounds should be struck out.
In his re-action/response to the preliminary objection, it is the submission of Chief Awomolo (SAN), that all the said grounds of appeal, are competent and in compliance with the provisions of Order 3 rules 2(2)(3) & (4) of the said Rules of Court, 2002, and are therefore, valid.
As to what is considered as a ground of appeal being vague, argumentative or general in terms, he cited and relied on the case of CBN & Anor. v. Okojie & 5 Ors. (2002) 8 NWLR (Pt. 768) 48 at 61 (reproduced) (it is also reported in 150 at 156 – per Uwaifo, JSC in his concurring contribution).
It is submitted that all the said grounds, relate to the findings and conclusions of the tribunal which were quoted in extenso and the particulars of identified error, clearly set out. That none of the grounds, is vague or argumentative.
It is further submitted that grounds 1, 3, 5, 11, 13, 14 and 16 also relate to the said findings and conclusions of the tribunal while the particulars merely elucidated and advanced the complaints in the said grounds.
In respect of grounds 7, 8, 10 and 12, it is submitted that they have their particulars fused into them. In other words, that the particulars, are embedded therein. The cases of Peter v. Architect Okoye & Anor. (2002) 3 NWLR (Pt. 755) 529 at 550 C – per Fabiyi, JCA and Chief Nsirim v. Nsirim (1990) 3 NWLR (Pt. 138) 285 at 297 (it is also reported in (1990) 5 SCNJ 174) referring to the case of Atuyeye & Ors. v. Ashamu (1987) 1 NWLR (Pt. 49) 267 at 282, (it is also reported in (1987) 1 SCNJ 72; (1987) 1 SC 333 at 339-347 and (1987) NSCC (Vol. 18 (Pt.1) 117) are cited, relied on and reproduced.
As regards the complaint in respect of grounds 2, 6, 9, 15 and 16, it is submitted that the complaint in ground 2 relates to the finding of the tribunal that the petitioners did not prove the allegation of presentation of forged certificate by the 1st respondent beyond reasonable doubt. That the particulars in that ground, state that the standard of proof is not expected to be beyond every iota of doubt as the tribunal decided.
It is submitted that the complaint in ground 6, relates to the interpretation and application given to the record of the Government of Borno State by the tribunal. That the particulars in the ground, relate to the failure of the tribunal to take into consideration, evidence, which is relevant to the case of the petitioners in the record concerning the certificates.
That the same argument/submission applies to grounds 9, 15 and 16. That the grounds and particulars were made to meet the manner the judgment was written and the issues determined.
Chief Awomolo (SAN) then submitted that the approach of the respondents to the grounds of appeal, is no longer fashionable. That the courts look at the substance of the ground of appeal, rather than the form. That the courts now aim at doing substantial justice.
He cited and relied on the case of Hambe & Anor. v. Hueze & 2 Ors. (2001) FWLR (Pt. 42) 11 and 12 (it is also reported in (2001) 4 NWLR (Pt. 703) 372 at 385 – 386 and (2001) 2 SCNJ 310, 41-42) according to him, per Ogundare, JSC (of blessed memory) which he reproduced with some very minor typographical spelling errors comment:- The passage credited to the learned Jurist, was lifted by his Lordship, from the judgment/pronouncement of Ayoola, JSC in the case of Alhaji Aderounmu & Anor. v. Olowu (2000) 2 SCNJ 180 190-191 in which he himself, shared the same views.
He therefore, finally submitted that all the grounds of appeal complained about, relate to the decision of the tribunal appealed against and constitute a challenge to the ratio decidend (sic) of the decision of the tribunal. That the respondents are not embarrassed, misled or prejudiced by the nature and manner of the complaints in the grounds of appeal.
For the avoidance of doubt, I will reproduce the provisions of Order 3 rules 2(2), (3) and (4) relied on by the leading and learned Senior Advocate of Nigeria.
“(2) If the grounds of appeal allege misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated”.
“(3) The notice of appeal shall set forth concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively”.
“(4) No ground which is vague or general in terms or which discloses no reasonable ground of appeal shall be permitted, save the general ground that the judgment is against the weight of the evidence, and any ground of appeal or any part thereof which is not permitted under this rule may be struck out by the court of its own motion or on application by the respondent”.
These provisions, in my respectful view, are clear and unambiguous.
They have been pronounced upon or interpreted by this court and by the apex court of the land in many decided authorities including those cited and relied on by both learned counsel for the appellants and the 1st and 2nd respondents, that I need not repeat them here in this judgment. However, for purposes of emphasis, I wish to say and this is settled, that in an appeal, not only must the grounds be supplied, the error must, be particularized. But this need not be so, where or if it – (the error), is patent from the judgment quoted. See Iro Ezera v. Ndukwe (1961) 2 All NLR 564; Adeniji & Anor. v. Disu (1958) SCNLR 408, (1958) 3 FSC 104; Luttre II v. Addcoth (1946)
2 All E.R. 625 C.A. just to mention but a few. See also Atkins Court Forms.

Also settled, is that grounds of appeal not containing the particulars of error or misdirection of the complaint made in them, are defective – see Amadi v. Okoli (1977) 7 SC 57 at 63-64 and The National Investment & Properties Co. Ltd. v. Thompson organization Ltd. & Ors. (1969) NMLR 99. So, such ground or grounds, is/are liable to be struck out. See Nta v. Anigbo (1972) 5 SC 156 at 164 and Osawaru v. Ezeiruka (1978) 6-7 SC 135.
It need be stressed and this is also settled, that it is not sufficient to quote or paraphrase the portion of the judgment in which the error or misdirection is contained. See Okorie & Ors. v. Udom & 3 Ors. (1960) 5 FSC 162 at 164; SCNLR 326.
A perusal of all the said grounds of appeal, show, that all of them, except grounds 7, 8, 10, 12 and 13, contain the particulars of either law or misdirection.
In the first place, I note that the 1st and 2nd respondents, have not called and did not call for further and better particulars if any of the grounds, is not clear or satisfactory to them.
It is now settled; firstly, that a ground of appeal which incorporates the particulars, is good, even when the particulars, are not contained under a separate heading. See Jozebson Ind. Co. v. R. Lauwers Import-Export (1988) 3 NWLR (Pt.83) 429, (1988) 7 SCNJ (Pt. 1) 95 101-102 or R. Lauwers Import-Export v. Jozebson Industries Co. (1988) 3 NWLR (Pt. 83) 429 & 442-443.
Secondly, and as held in the case of Chief Nsirim v. Nsirim (supra) which referred to the case of Atuyeye & Ors. v. Ashamu (supra) it also settled that where a ground of appeal is couched or framed in such a style which incorporates or contains particulars of misdirection or error complained of and their nature, but without setting them out as is usually done under a separate heading, it cannot be said that the appellant failed to supply the particulars and nature of the error or misdirection in such ground/grounds. See also Titus Onuma & Anor. v. Ebenezer Nwokoro & Ors. (1987) 1 NWLR (Pt. 48) 149, (1986) 11 CA (Court of Appeal Report) 34 and recently, Global Transport Oceanico S.A. & Anor. v. Free Enterprises (Nig.) Ltd. (2001) 2 SCNJ 204 at 240, (2001) 5 NWLR (Pt. 706) 426 at 437-438) – per Kalgo, JSC.
Thirdly, as held in the case of CBN v. Okojie & Ors. (supra) per Uwaifo, JSC, citing also -Atuyeye v. Ashamu (supra). “Vagueness of a ground of appeal may arise where it is couched in a manner which does not provide any explicit standard for its being understood, or when what is stated, is so uncertain that it is not susceptible of being understood. It may also be considered vague when the complaint is not defined in relation to the subject or it is not particularized or the particulars are clearly irrelevant”.
On the above authorities, it is my humble and respectful view, that the said grounds 7, 8, 10 and 12 cannot be described as vague by any stretch of imagination.
In respect of the other grounds of appeal complained of, I anchore my stance or view in the case of Aderounmu & Anor. v. Olowu (supra) referred to in the case of Hambe & Anor. v. Hueze (supra) where the Supreme Court – per Ayoola, JSC and referred to by Ogundare, JSC at p. 11 of the FWLR and pages 41-42 of the SCNJ, report and pages 385-386 of the NWLR, inter alia, as follows:
“The rules of our appellate procedure relating to formulation of grounds of appeal are primarily designed to ensure fairness to the other side. The application of such rules should not be reduced to a matter of mere technicality whereby the court will look at the form rather than the substance. The prime purpose of the rules of appellate procedure both in this court and in the Court of Appeal, that the appellant shall file a notice of appeal which shall set forth concisely the grounds which he intends to rely upon on the appeal and; that such grounds should not be vague or general in terms and must disclose a reasonable ground of appeal is to give sufficient notice and information to the other side of the precise nature (not “naturing” as reproduced by Chief Awomolo [SAN] of the complaint of the appellant and consequently of the issues they are likely to arise on the appeal. Any ground that satisfies the purpose should not be struck out notwithstanding that it did not conform to a particular form”. (Italics for emphasis)
In the said case of Alhaji Aderounmu & Anor. v. Olowu (which is also reported in (2000) 4 NWLR (Pt.652) 253 at 272 and at page 198 of the SCNJ report) Ogundare, JSC, had this to say, inter alia, after considering the said rules of the court:
“These provisions spell out what are required of a ground of appeal and the purpose is to ensure that the respondent is not taken by surprise. Once, therefore, a ground of appeal clearly states what the appellant is complaining about and there is compliance with the rules of court, I cannot describe such a ground as bad and therefore incompetent.” (italics mine).
See also Oge v. Ede (supra) at p.577.
I have already noted, that the 1st and 2nd respondents, have not applied to the court for further and better particulars if in fact, any of the grounds and/or particulars, is/are not clear or satisfactory to them. They only applied for further and better particulars of Paragraph 16(1) (v) – (vi) of the petition.
I agree with Chief Awomolo (SAN), that the respondents particularly the 1st and 2nd respondents, have not stated or complained how the said grounds of appeal complained of, have either embarrassed, misled or prejudiced them by the nature and manner of the complaints in any of the said grounds of appeal.
Afterwards, they have formulated issues on all the grounds of appeal and preferred arguments in respect thereof. I will end the consideration of the preliminary objection, by referring to the observation/pronouncement of Oputa, JSC in the case of Bello & 13 Ors. v. Att.-Gen. of Oyo State (1986) 5 NWLR (Pt. 45) 828 at 886.
Said the learned Jurist while dealing on technicality –
“The picture of law and its technical rules triumphant and justice prostrate may, no doubt, have its admirers.
But the spirit of justice does not reside in forms and formalities, or in technicalities, not, in the triumph of the administration of justice to be found in successfully picking one’s way through pitfalls of technicalities”.
(Italics mine)
I will add, or securing victory by a technical knock out.
I therefore, hold with the greatest respect for the learned leading counsel for the 1st and 2nd respondents – Mr. Ali (SAN), that on the authorities, I find no merit in the preliminary objection which fails and it is accordingly dismissed. Now to the merits of the appeal.
Issues Nos. 1 and 3 of the appellants and the 1st and 2nd respondents and 1, 2 and 3 of the 3rd -12th respondents.
A reading of the above issues, will show, and they appear to me, to be the same in substance. The parties have in their respective brief, reproduced the averment of the appellants in paragraph 16(i) of their petition at page 4 of the records. But permit me first to reproduce paragraph 15 thereof in order to bring in proper form or perspective, the issue in controversy.
“15. Your petitioners are challenging the results of the election as declared by the 3rd and 4th respondents on the grounds that:
(i) The 1st respondent and or the 2nd respondent were not qualified to run for the office of Governor and Deputy Governor respectively at the time of the election as they were, at the said time and up till now, under a legal/constitutional incapacity which prevents them from contesting for and holding the office of Governor and Deputy Governor respectively.
(ii) The election was invalid by reason of being fraught with numerous illegalities and corrupt practices and substantial non-compliance with the provisions of the Electoral Act, 2002 (“the Act”) and the rules and regulations laid down for the conduct of the election by the 4th respondent further to the provisions of the Act.
(iii) The 1st and 2nd respondents were not duly elected by a majority of lawful votes cast at the election.
It seems to me and as held by the tribunal at page 37 of its judgment at page 749 of the records, that the appellants, did not lead evidence in support of the averment in Nos. (ii) and (iii) of the said paragraph 15. It stated that “both” – counsel agreed in their respective address, that since there is no evidence adduced in support of the said pleadings, the said paragraphs are deemed as abandoned.
This fact, accounts for the statement of Mr. Okupe in their brief, that the petitioners/appellants, abandoned the substantial part of their pleadings especially, the grounds dealing with irregularities in the conduct of the said election, corrupt practices, rigging, thuggery and over voting during the election, as, according to him, no single evidence were led thereon. So be it.
I will now proceed to reproduce paragraph 16(i) of the appellants’ petition. It reads as follows:
“Your petitioners state that some of the facts on which they shall be relying upon in support of the grounds for challenging the election stated in paragraphs (sic) 11, 12 and 13 above are as follows:
(i) The 1st respondent submitted forged certificates to the Independent National Electoral Commission and the State Security Service.
Particulars of the said certificates are:
(a) A Diploma in Business Studies with English, dated 27th April, 1982 and purportedly issued by a center of Economic & Political Studies in association with the Business language School, London.
(b) A certificate in Export, Shipping, Trade and Transport dated 1st July, 1982 also purportedly issued by the same Center of Economic & Political Studies London”.
The 1st respondent, (using the word of Chief Awomolo (SAN) and Ali, Esq. (SAN) in their respective brief), poignantly in reply in paragraph 3 of the 1st and 2nd respondents at pages 6-7 of the supplementary record of proceedings, pleaded as follows:
“3. The respondents deny the averments contained in paragraph 16 of the petition and states (sic) as follows:
i. The 1st respondents (sic) never submitted forged Certificates to the Independent National Electoral Commission and the State Security Services as all the certificates submitted to the above named bodies are genuine as particularized in paragraph 16(1) (a) and (b) of the petition.
Furthermore, the 1st respondent has a First School Leaving Certificate and (i) a Diploma in Business Studies in English from Centre of Economic and Political Studies London in 1981-1982, and (ii) Diploma in Business Studies English from Centre of Economic and Political Studies London issued on 27th April, 1982. The said certificates were accepted by the 3rd and 4th respondents and in compliance with the 1999 Constitution and the Electoral Act, 2002”.
Now, Chief Awomolo (SAN), has submitted that from the state of the pleadings, both parties, have made it clear, that the allegation of the appellants, is that the Diploma and certificates pleaded are forged and that they were presented by the 1st respondent. (The italics his). That the issue before the Tribunal, was whether the Diploma and Certificate presented by the 1st respondent, were (not was) genuine or forged having regards to two issuing authorities of the Certificate/Diploma.
The learned SAN referred to section 182(1) of the 1999 Constitution – which provides that:
“No person shall be qualified for election to the office of Governor of a State.
(j) if he has presented a forged certificate to the Independent National Electoral Commission”.
He stated that before the hearing of the petition began, at all, the tribunal, on the application of the 1st respondent, ordered that the 1st respondent “caused his witness to give evidence on the makers, making and genuiness of the Diploma and Certificate pleaded by the parties”, by swearing to an affidavit.
That upon the application of the petitioner’s (sic) counsel, the court (sic), extended the right to give evidence by an affidavit, similar to that granted to the 1st respondent, to the petitioner.
That the 1st respondent’s witness Mr. Ian Goatman swore to a 12 paragraphs affidavit to which he attached various documents. He referred to pages 152-171 A of the records.
That the petitioners, in reaction to the affidavit and the documents attached, swore to three (3) “counter-affidavits”. The first, by Mr. William Rotimi Akinyele, as representing the Honourable Minister of Education. “(2)” Alhaji Gubio and Barrister Ochugboju (it is Ojo). He referred to pages 202-414 and 437-453 of the records (spelt record). Comment. Pages 437-441, contain Mr. Ali’s (SAN) opposition to an application for an adjournment, the arguments and on the Bench Ruling. Pages 442-449, contain applications for subpoena Duces Tecum, notice of change of counsel and the grant, while pages 450-459, are arguments in respect of the subpoena for the 1st respondent, to produce some documents named therein.
The learned SAN, then posed the question thus: “how did the election tribunal resolve the issue?
He stated that the learned Judges of the tribunal, dealt with the issue from page 713-825. He reproduced the holding of the tribunal at page 768 of the records and submitted that the intent of the provision of section 182(2) of the Constitution with regards (sic) to presentation of forged certificate, is not to create a criminal offence to which whosoever is alleged to have violated must (sic) (meaning it), must be seen to be standing trial at the election tribunal by inference. That section 182 of the Constitution, created ten (10) grounds of disability (which he enumerated) and stated that a sober consideration of each of them, shows that none of them, constitute (sic) a crime neither is such intended.
I note that in Chief Awomolo’s SAN oral submissions as regards this said section, he submitted that in the interpretation of this section, the tribunal, incorporated the provisions of sections 363 and 366 of the Penal Code particularly, the elements of crime i.e. “fraudulently and dishonestly used as genuine”. He referred to page 768 of the records, according to him, in order to arrive at a meaning which the Constitution, did not envisage nor did not provide for.
It is his submission that if the tribunal did not “incorporated or “implied” the provisions of the Constitution, the decision, should have been different. That the provision, does not import any type of crime although, according to him, the section, provides for ten (10). But that none of them, as he had stated in their brief and as stated hereinabove, talks of crime or importation to its candidates. He submitted that this led to the misapplication by the Tribunal, of the burden of proof.
The learned SAN stated that it is not in dispute and that there is no dispute, that the 1st respondent presented exhibits C and C1. That the issue in dispute, is whether these documents, are forged. That in this respect, a document is forged, if it is raised by a fictitious person or non-existent person. That on the face of exhibits C and C1, there is apparent conflict and inconsistent (sic) (meaning inconsistency).
He submitted that the documents speak for themselves. He referred to paragraph 12 of the affidavit of Mr. Goatman who he described as 1st respondent’s witness and stated that this, clearly demonstrates fiction in the issuing authority. He referred to page 154 of the records i.e. the Memorandum of Association of Quentbridge Schools Ltd. He urged the court to look at the documents and allow this issue.
Reverting to the brief, it is submitted that in resolving the claim of the appellants, they are required to lead evidence to show two (2) things-
(1) That the certificate presented to INEC was forged.
(2) That it was presented by the 1st respondent.
The rest of the arguments under this issue, appear at pages 14 to 25 of the appellants’ brief, as regards the question as to whether there “was commission of crime directly in issue here”. The cases of University of Maiduguri v. Garba (citation/reference not supplied); Medical and Dental Practitioners Disciplinary Tribunal v. Dr. Okonkwo (2001) FWLR (Pt. 44) 542 at 579-580 (it is also reported in (2001) 3 SCNJ 186 and (2001) 7 NWLR (Pt. 711) 206 – per Ayoola, JSC – (reproduced); Sunday Erhabor Uso & Anor. v. Chief F.A. Okotie-Eboh (unreported judgment) of the Supreme Court – FSC: 407/1959 of 15th June, 1961 – per Unsworth, F.J. (reproduced) are cited and relied on in line with the said oral submission.
The Learned (SAN) has also referred to section 21 of the Electoral Act, 2002 and stated that the responsibilities of the commission, with respect to candidates, is minimal. He also stated the provisions of the said section. The case of Alhaji Abdullahi Usman Matori v. Alhaji Aminu Mohammed Dan Bauchi & 2 Ors. (2004) All FWLR (Pt. 197) 1010 at 1044 CA – a decision of this court – per Obadina, JCA, has also been cited and relied on. It is stated that the said case, gave the rationale for disqualification clause in the Constitution (which he reproduced).
Chief Awomolo (SAN) has in great detail, in the brief, gone into the evidence of the appellants’ witnesses, the exhibits, the affidavit of Mr. Goatman, and submitted that the appellants have satisfied the requirements of proof beyond reasonable doubt. That to prove beyond reasonable (sic) means, evidence consistent to prove the ingredients of the allegation.
It is his submission therefore, that the demand by the tribunal for absolute proof, by elimination of all imaginable doubt, is not consistent with the phrase “proof beyond reasonable doubt”. He cited and relied on the case of Bakare v. The State (1987) 1 NWLR (Pt. 52) 579 – per Oputa and Karibi- Whyte, JJSC (which he reproduced) (it is also reported in (1987) 3 SCNJ 1).
He urged the Court to hold that on the quality of the evidence on record, the tribunal ought to have found in favour of the appellants “when all the totality of the evidence is considered on the issue” (the italics his).
The learned SAN, stated that the Hon. Judges of the tribunal, held that the counter-affidavit of the appellants, did not controvert the averments in Mr. Goatman’s affidavit, even when, according to him, it showed that there is no educational institution called Centre of Economic and Political Studies, and even Mr. Goatman’s affidavit, admitted that the center, was a mere examination center, not registered, not recognized and not accredited.
He further stated that there was no evidence by Goatman of the connection of English Language School which was claimed to have issued exhibit C. (The italics his). That “the basis for accepting the affidavit of Mr. Goatman, is unfounded in law and a grave misdirection on the facts”. He submitted that the evidence of the respondents supported the evidence and facts produced by the appellants on the issue and that the tribunal failed, to consider them.
(The italics his).
It is his further submission that on the preponderance of evidence, the appellants have proved their case. That the manner of treating the facts and evidence by the tribunal was perverse. (The italics his). He indicted the tribunal by submitting that the manner of writing the judgment whereby the evidence of the appellants, was first destroyed before considering the evidence of the respondents and accepting them without exception, violates the fundamental rules of fair trial and justice. He cited and relied on the case of Odofin & Ors. v. Mogaji & Ors. (1978) NSCC Vol. II 275 which he reproduced, and the case of Uchendu & Ors. v. Chief Ogboni & Ors. (1999) 5 NWLR (Pt. 603) 337 at 363 (it is also reported in (1999) 4 SCNJ 64) – per Ayoola, JSC (reproduced).
It is submitted that the appellants, suffered irretrievable miscarriage of justice by the manner the Judges of the Tribunal, treated the issues in the judgment. That the 1st respondent, according to him, who had the onus to debunk the allegation, had no – answer to the allegation. That he was subpoened to produce his letter of admission and his passport of overseas travel, as evidence that there was indeed a person who allegedly issued the certificates. That he was not bold enough to produce them because, according to learned counsel, he knew the truth would support the appellants’ case.
The learned SAN, urged the court to exercise its powers under section 16 of the Court of Appeal Act to hold that the 1st respondent, presented exhibits C & C1 to INEC as evidence of educational qualification and that the certificates issued by two different “persons”, who, according to him, do not exist but fictitious at the time they were allegedly issued, were forged.
In reply to the submissions of the 1st and 2nd respondents’ brief in respect of non-qualification of the 1st and 2nd respondents, Chief Awomolo (SAN), referred to page 35 para 5.02 of the said brief and the submission which he reproduced thus:
“It is clear from the above that the central issue in the allegation of non-compliance to contest the election made by the appellants against the 1st respondent, was the allegation of presentation of forged certificates to the 3rd respondent for the 19th April, 2003 governorship election. The question that called for resolution by the trial tribunal was whether or not the 1st respondent presented forged documents to 3rd respondent for the purposes of the election. The question of his not having minimum educational qualification was not in issue on the pleadings.” (Italics supplied for emphasis).
It is then submitted that the above submission, is erroneous, misleading and a departure from the case made in the Tribunal and contained in the decision appealed against. That what the law requires to question an election, is whether the candidate was qualified to contest the election or that “the” (sic) (meaning he) was disqualified. That whether a candidate possessed minimum educational qualification, is a matter of evidence. The learned SAN referred to the averments in paragraphs 15 and 16 of the petition which he reproduced and to the said reply or pleadings of the 1st and 2nd respondents in respect thereof. He again, went into the evidence before the Tribunal.
Chief Awomolo (SAN) in their para. 5.00 at page 12 of the reply brief to the 1st and 2nd respondents titled/headed “prove (sic) (meaning proof) of forgery as required by law”, referred to the submissions of the 1st and 2nd respondents in this regard, and submitted or rather maintained that had the tribunal considered the totality of the evidence on record, it would have held, that exhibits C & C1, were forgeries and that the appellants had proved their case. That the respondents’ failure to rebut or contradict the evidence of forgery shown on the certificates, is fatal to their case.
On “admissibility of public document – photocopies thereby” in para. 6.00 of their said reply brief, it is submitted that INEC’s certification of the photo copies, does not meet the requirements of the provisions of the Evidence Act, INEC not being the maker and not being in any position, to authenticate the origin of the documents. That in this age of computer and electronic magic, the demands of the law of certification by the issuing authority whom (sic) (meaning who) the law presumes to be in possession of the original information, becomes more imperative to prevent another “Toronto” experience of our time.
The learned SAN referred to the case of Ron. Justice E.O. Araka v. The Hon. Justice Don Egbue (2003) 17 NWLR (Pt.848) 1, (2003) 7 SC 75 at 84-85 (it is also reported in (2003) 7 SCNJ 114 at 126 per Niki Tobi, JSC which he reproduced as to the rationale of the law of certification under section 97(2) of the Evidence Act.
He also cited and relied on the case of Isibor v. The State (2002) FWLR (Pt. 98) 843 at 855 (it is also reported in (2002) 2 SCNJ 162 and (2002) 4 NWLR (Pt. 158) 741 – per Uwaifo, JSC which he also reproduced as regards the further amplification on the need for the authentication of a public document from the originating officer.
He posed the question as to whether INEC is competent “to certify the authenticity, the truth and “correctness official the information of contained in the avalanche of document attached to, J and J1” (sic) particularly, when it was not the originator or maker of the said documents.
The learned SAN referred to the evidence that the photocopies of these documents, were submitted to INEC and that it was confirmed under cross-examination, that it was on the basis of the “face value” of the documents, that the 1st and 2nd respondents, were cleared. He again queried the authority of INEC to certify the said documents as being authentic.
Chief Awomolo (SAN) referred to the submission at page 52 para. 6.13 of “the respondents” brief, and submitted that it is hollow and in ignorance of section 91(1)(a)(i) & (b) of the Evidence Act which requires that in any civil proceedings where direct oral evidence or fact, would be admissible, any statement made by a person in a document and tending to establish that fact, shall on production of the original document, be admissible as evidence of that fact, if certain conditions are satisfied.
He stated that this provision, was interpreted by this court in the case of Okafor v. Okpala (1995) 1 NWLR (Pt. 376) 749 757 per Ejiwunmi, JCA (spelt as Ejiwunmi) (as he then was) (which he reproduced). He then submitted that the interpretation given to the provisions of section 111(1) of the Evidence Act by the learned counsel to the respondents is very erroneous. He reproduced the said section.
It is his submission that a community reading of sections 97(i) (a)(ii), (f) (1) (2)(2), 111 (1) and 112 of the Evidence Act, show that the certification of a public document, must be by the public officer from where the original, was issued. That it is only the body like Government Secondary School Barma Borno State and the Borno State Teachers College, that issued the original testimonials and statement of result as evidence of its records that can issue Certified True Copy to any person who may demand for same and also pay the prescribed fee as secondary evidence of the records of the public body.
The learned SAN referred to the submission of his learned brother silk at page 63 para. 8.04 of their brief, and submitted that there is no evidence like Borno Teachers College Grade II Certificate, statement of results of the 2nd respondent. That the appellants, did not tender exhibits M and G through the DW1. He referred to the cross-examination of DW1 at pages 476-481 and pages 506-511 of the record for the cross-examination of DW1 by learned counsel to the appellants. That nowhere is it recorded, that exhibits M and G, were tendered under cross-examination of DW 1.
It is his submission that a statement of result, cannot be equated with a Teachers Grade II Certificate as provided by sections 177 and 182 of the 1999 Constitution. That the issue is that they were not admissible in law and that none of the parties, can waive the requirements of the law.
Chief Awomolo (SAN), then referred to page 49 of the 1st and 2nd respondents’ brief and the submissions thereon to the effect, that it is possible, for a party to a suit, to lead evidence on facts that had not been pleaded and that having regard to Order 25 rule 38 (of what rules, he did not state) that a defendant is entitled to disprove, any allegation in the plaintiffs pleadings that had not been admitted in the statement of defence.
He then submitted, that the above submission is a mute point. That this is because, the said provision, cannot be invoked by the respondents, because, the respondents, did not give evidence during the trial of the petition. That they relied on the evidence of the petitioners.
The learned, SAN, referred to pages 50-51 – particularly, paragraph 6. 10 of the 1st and 2nd respondents’ brief where they invoked the provisions of section 227(1) of the Evidence Act and submitted that the wrongful admission of exhibits H, H1, J and J1, has not led to a miscarriage of justice.
It is then submitted that the admissibility of the said exhibits J, J1, H and H1, led to a grave miscarriage of justice because,
(i) The tribunal relied on the said exhibits to hold that the 1st and 2nd respondents were qualified.
(ii) If the documents had not been admitted, the tribunal would have held that the respondents were not qualified having regard to the provisions of sections 177 and 182 of 1999 Constitution.
(iii) The documents were not admissible at (sic) law and neither the court nor parties can waive the defects.
Indeed section 122 of Evidence Act did not over rule (sic) the mandatory provisions of sections 98 and 111 of Evidence Act.
(iv) The tribunal dismissed the petition of the appellants because it held that same was not proved.
(v) Therefore, the decision of the tribunal led to a miscarriage of justice.
As regards paragraph 5.08 of the 1st and 2nd respondents’ brief contending that there was no challenge to the findings of the tribunal in relation to the holding of the tribunal, that the appellants presented a different case from their pleadings, it is submitted that it cannot be correct that the fundamental findings of the tribunal, were not challenged. That ground 17 of the grounds of appeal at page 840 of the records (not record), (i.e. the omnibus ground), is to the effect that the decision of the tribunal, was against the weight of evidence.
It is further submitted that from the totality of the grounds of appeal, the issues formulated and the brief of the appellants, the appellants, challenged the fundamental grounds on which the judgment of the tribunal, was based. He referred to grounds 3 and 13 at pages 833-834 of the records. That the law is that the appellant, is not obliged to appeal against every sentence in the judgment. That it is sufficient that there is a complaint which encompasses the matter under reference in any of the grounds of appeal.
Concluding, the court is again urged to allow the appeal and a fortiori hold that the decision of the tribunal, led to a miscarriage of justice in view of the “overwhelming evidence of the appellants and their witnesses”.
In dealing with this issue, I have earlier in this judgment, also reproduced the pleading in paragraph 16 of the petition of the appellants also reproduced by the 1st and 2nd respondents in their brief and their reply thereto.
It is submitted on behalf of the 1st and 2nd respondents “with force”, that allegation of forgery, was very central to the case of the appellants against the 1st respondent. Therefore, that the finding of the tribunal on this point, cannot be faulted. The said finding of the tribunal reproduced in the said brief, is at page 768 (not Pt. 791) of the records as stated in the said brief.
It is further submitted, that not only that the allegation of presentation of forged documents, fall under the provisions of sections 363 ad 366 of the Penal Code, as rightly found by the tribunal at p. 791 (it is at page 768) according to the learned counsel for the 1st and 2nd respondents, that the presentation of forged documents as genuine, is also an offence of uttering. That what is more, is that the provisions of section 115(1)(k) and sub-sections (2) and (3) of the Electoral Act, 2002, are also in point. That shun of all verbiage, the allegation boils down to saying that the 1st respondent, consented, to be a candidate at the election, when he knew, he was not eligible to do so. That this is a criminal offence under section 115(1)(k) of the Electoral Act, 2002.
It is submitted that it is settled now, that one is tempted not to cite authority, that where an allegation of the commission of an offence, is made in any matter, the standard of proof required, is as enjoined in section 138 of the Evidence Act that the sacred position of the law, was recently restated by this court in the case of Ukpo v. Adede & Ors. (supra); (2002) 3 NWLR (Pt 755) 671 at 687 which is also reproduced. Also, the cases of fang & Anor. v. Chief Dariye & 83 Ors. (2003) 15 NWLR (Pt. 843) 436 at 461 paragraphs E-G per Akintan, JCA (as he then was) and Vivian Anazodo v. Esther Audu & 3 Ors. (1999) 4 NWLR (Pt. 600) 530 at 545 and 550 E-F CA, have been cited and relied on.
The leading learned SAN for the 1st and 2nd respondents, has submitted that the appellants, not only failed to lead any credible evidence on the alleged forgery, but also, did not meet the standard presented by the rules of court to even give the Tribunal, the vires to countenance the allegation as presented.
He referred to Order 26 rules (5) and (6) of the Federal High Court Rules which he said, made applicable to the tribunal, by virtue of para. 50 of the First Schedule to the Electoral Act, 2002, mandatorily, provide that where allegation of forgery or fraud, is made in a case, the pleader, has a duty to supply particulars of the allegation. That in this case on appeal, the appellants, failed totally, to supply the particulars of the alleged forgery. That rather, they only supplied particulars of the certificates alleged to be forged. That they had a legal duty, to particularize, the way and manner the 1st respondent, presented alleged forged certificates to the 3rd respondent. That they failed to do this. That on this score alone, the court (sic) would be right not to have entertained the nebulous allegation made in paragraph 16(i) of the petition. That the tribunal was even benevolent in that it went, as it were, out of its way, to consider the point. He referred once again, to the case of Ukpo v. Adede (supra) this time, at page 689 E-F which he also reproduced. He also referred to and reproduced, the views of the tribunal of the matter, at page 795 (it is at page 772) of the records.
It is submitted, that there is no appeal against this finding which, according to the learned SAN, is deemed correct. That having not appealed against the above, nor argue it in their brief, then the rest of the argument on issue No. 1 as presented by the appellants, is pure “brutum fulmen” -(meaning an empty noise or threat – i.e. something ineffectual).
It is further submitted that the learned trial Judges, admirably, at page 796-798 of the records (it is at pages 772-774), took the point that the case of the appellants as presented, was different from their pleadings. That the appellants did not challenge these fundamental findings of the tribunal. The learned SAN cited and relied on the case of Egbe v. Alhaji & 2 Ors. (1990) 1 NWLR (Pt. 128) 546 at 590 (it is also reported in (1990) 3 SCNJ 41). Comment: With respect, I see no relevance of this case to the above submission. He also cited and relied on the case of Dapub (sic) (it is Dabup) v. Kolo (1993) 9 NWLR (Pt. 317) 254 at 269. (it is also reported in (1993) 12 SCNJ 1).
Mr. Ali (SAN) stated that the tribunal ex abundati (sic) (it is abundant) cautela from pages 798-820 took very keen view of the evidence, and came to the conclusion that even if the evidence led, is said not to be outside the pleadings of the appellants, they still failed on a close scrutiny of the evidence led, to prove that the 1st respondent, submitted forged certificates to the 3rd respondent. The learned SAN, commended what he described as “the very thorough and painstaking findings recorded in the above stated pages of the records by the tribunal”, to this court.
The learned SAN, referred to para. 7.01 of the appellants’ brief of argument where he stated that his learned senior counsel, sought to put “some strained interpretation” on the provisions of section 182(1)(j) of the Constitution. He pointed out what was the correct reference and not section 182(2) relied on by Chief Awomolo (SAN).
He submitted that the Constitution, will not create nor punish criminal offences. That rather, where any provision in the Constitution has criminal elements, one falls back to the existing Penal Statutes like the Penal Code. He referred to section 315 of the Constitution.
It is his further submission, that it cannot be doubted that a person that presents a forged certificate to INEC, not only stands the risk of disqualification, he can also be proceeded against, under the Penal laws for the infraction of those laws. Therefore, where it is alleged that a person presents forged certificates to INEC, it is clearly an imputation of crime that must be proved beyond reasonable doubt.
That to put this matter beyond argument, the Constitution provides a lot of prohibition (sic) (meaning prohibitions) in Part 1 of the First Schedule of the Constitution on the Code of Conduct for Public Officers. That it cannot be doubted that if a public officer runs foul of any of the prohibitions, the Constitution, has not provided criminal sanctions, but that there are other laws like the JCPC Act that will be invoked to deal with the erring public officer.
The learned SAN posed this question – i.e. Can one then say that an allegation of taking bribe prohibited in paragraphs 6, 8 and 9 of the First Schedule of the Constitution, would have to be proved on a preponderance of Evidence?
I note that he did not answer the poser/question. He however, submitted that from the foregoing, the extensive submissions, made in paragraphs 7.03, 7.04 and 7.05 of the appellants’ brief, cannot stand the test of time.
He stated that the tribunal found expressly, that commission of crime of forgery, was directly in issue and that it treated the case as such. That the submissions in paras 7.06, 7.07 and 7.08 of the appellant’s (sic) brief, with all the authorities cited, are not germane to the consideration of this issue.
Mr. Ali (SAN) referred again to para. 7.07 where it was stated that “whoever forged the documents are not before the court”. That the question is, who ought to bring the person(s) to the tribunal?
That the logical answer, is the appellants and that they failed in that respect.
He also referred to para. 7.09 of the appellants’ brief (spelt again as appellants brief) and stated that a new case was being sent up. (sic) (meaning set up) on appeal.
The learned SAN stated that in para. 7.10 of the appellants (sic) (meaning appellants’ brief) it was stated that “Is it a coincidence that of all the hundreds of schools listed in evidence of PW2 it is only the 1st respondent school (sic) (respondent’s school) that never existed as an educational institution?” He submitted that there was no where in the record (sic) (records) where PW2 listed any school not to talk of hundreds as misrepresented in the appellants (sic) brief.
On the issue of contradictions, it is submitted that the contradictions in the testimonies of the appellants’ witnesses as extensively highlighted in the judgment of the tribunal especially at the said pages 798-820 of the record, (sic) are unassailable. That it is clear from the drift of the judgment of the Tribunal, that the testimonies of PW1, PW2, PW3 and PW4, were found worthless and rightly rejected.
As regards what the learned SAN described as the veiled allegations of bias made against the learned trial Judges of the tribunal in paragraph 7.12 of the appellants’ briefs, he submitted that it is not only unfounded but unfortunate. That the content of exhibit J quoted in that paragraph of the appellants’ brief, is clear. That the document, did not say that the schools did not exist. That it only states that the institution, was not recognized by the government. That there is a world of difference between a non-existent School and a School that is not recognized by the government.
Ali, Esq. (SAN) referred to the submissions in paragraphs 7.14 and 7.15 of the appellants’ brief on the testimony of PW4 and submitted that they are not candid and not borne out by the records. That the PW4, lied unabashedly at the trial, and that the tribunal found serious contradictions in his testimony.
He referred to the dictum of Pats-Acholonu, JSC in the case of C & C Construction Co. Ltd. & Anor. v. Okhai (2003) 18 NWLR (Pt. 851) 79 at 100 which he reproduced. (it is also reported in (2003) 12 SCNJ 33).
In answer to the submissions in paragraph 7.15 of the appellants’ brief, it is submitted that there is no where, that the tribunal, demanded a higher standard of proof over and above proof beyond reasonable doubt in its judgment. That it did not ask for absolute certainty or any other such fanciful epithets. That the cases cited in the appellants’ brief in the said paragraphs, are clearly cited out of con.
In respect of the submissions in paragraphs 7 – 16, 7.17 and 7.18 of the appellants’ brief, the learned SAN, states that they clearly beg the issue in this matter. That the tribunal, having, according to him, rightly disbelieved the witnesses for the appellants, it cannot be said that they even proved their weighty criminal allegations, on a preponderance of evidence.
That it is settled that a testimony that is disbelieved, cannot be the basis of the success of a plaintiff or defendant in a case. That in the same vein, a court has a duty to disbelieve a witness that has been shown to be lying or who has been successfully assailed under cross-examination, like the witnesses for the appellants in this case.
He cited and relied on the cases of Incar Nigeria Plc & Anor. v. Bolex Enterprises (Nig.) (2001) 12NWLR (Pt. 728) 646 at 668 (it is also reported in (2001) 5 SCNJ. 460) and Olumide & 2 Ors. V. Dr. Ajayi (1997) 8 NWLR (Pt. 517) 433 at 443,444 CA.
As regards the submission in paragraph 7.19 of the appellants’ brief it is submitted that they are totally erroneous. That the appellants, having not succeeded in making a prima facie case, there was no duty on the 1st respondents, to dislodge a non-existent case. That at the trial, parties did not join issue on the traveling documents of the 1st respondent. That it was therefore, not out of question and it was a patent abuse of procedural rules to have even asked the 1st respondent, to produce his traveling papers as the appellants attempted to do at the trial. That at any rate, the Tribunal, according to him, rightly thrashed this issue at pages 818 – 819 of the records. He urged the court to endorse the same.
The learned SAN, finally prayed the court to hold that the allegation of forgery was central to the case of the appellants and that they failed woefully to discharge the burden of proof cast on them by law either beyond reasonable doubt or even on balance of probabilities. That this issue should be resolved against the appellants.
Mr. Okupe’s arguments in their brief in respect of this issue No.1, covers from page 5 to page 27 of their brief, which are substantially, the reply to the controversy highlighted in the appellants’ brief. He referred to the decision in the case of Matori v. Bauchi (supra). He also referred to the case of Aja Wakil Eli v. Zanna Musa Ajid, Appeal No. CA/J/172/2003 delivered on 10th November, 2003 to the effect, that an allegation that a candidate presented forged certificate to contest an election, is a serious criminal allegation that must be proved beyond reasonable doubt. That the above case, is similar to the present case on appeal.
He referred to paragraph 9 of the petition which he reproduced. He referred to page 11 of the above judgment with regard to the nature of the allegation and reproduced the pronouncement of Mukhtar, JCA. He stated that the tribunal, was bound to follow the above authority not only as a decision of a superior court of record and for the better reason that it represents the true and law.
He submitted that the tribunal was on a firm ground when it held that the standard of proof was beyond reasonable doubt. He cited and relied on the cases of Anazodo v. Audu (supra); Omoboriowo v. Ajasin (1984) 1 SCNLR 108; Nwobodo v. Onoh (1984) 1 SCNLR (he didn’t insert the page but it is at page 1); and Owoade v. Sekoni (1998) 9 NWLR (Pt.565) 281.
He also cited and relied on the case of Ukpo v. Adede (supra) part of the decision, he also reproduced. He therefore, submitted that the appellants who alleged that the 1st respondent presented forged document, must as a matter of necessity, give full particulars of the forgery, and also lead evidence in proof of the allegation.
Learned counsel referred to Order 26 rules 5 and 6 of the Rules of the Federal High Court applicable to the tribunal by virtue of the provisions of paragraph 50 of the First Schedule to the Electoral Act which he reproduced. He cited and relied on the case of Yar’Adua v. Barda (1992) 3 NWLR (Pt.231) 638 at 656 – per Akanbi, JCA (as he then was) and which he reproduced as to the essence of supplying particulars in pleadings.
He also cited and relied on the case of Chief Egolum v. Chief Obasanjo & Ors. (1999) 7 NWLR (Pt. 611) 355 at 392 (it is also reported in (1999) 5 SCNJ 92) – per Uwais, CJN which he also reproduced and submitted that the appellants, only gave particulars of the certificate, but failed to give particulars of the forgery as required by the above authorities. That the effect of their default, is to render the evidence adduced thereon, inadmissible in law.
He also referred to page 17 paragraph 7.08 of the appellants’ brief which he reproduced and their submission that the evidence led by the appellants’ witnesses, were admissible in law. He submitted that the evidence of PW1, PW2, PW3 and PW4 as to the non-existence, non-accreditation and non-approval of the School that issued exhibits C and C1 were inadmissible, as according to him, they are not supported by the facts pleaded.
It is Mr. Okpe’s submission, that while it is correct to state that parties are not to plead evidence, it is also a correct principle of the rule of pleadings, that where a party is confused as to what constitutes a fact and evidence, abundance of caution, requires that he should go ahead and plead what may appear to be evidence in order not to spring surprises on his adversary. He cited and relied on the case of Odogwu v. Odogwu (1990) 4 NWLR (Pt. 143) 224 at 233 (sic) (it is at page 224 at 234) paragraphs E – F – per Akpata, JCA which he reproduced.
He submitted that apart from the bare allegation that 1st respondent submitted forged certificate to INEC for the purpose of contesting the election, no where in the pleadings, did the appellants, plead any facts relating to:
(a) The history of accredited and unaccredited Schools in England.
(b) The existence or otherwise of Centre of Economic and political Studies.
(c) Recognition or otherwise of the School that issued exhibits (sic) C and C1.
It is his submission that these were the material facts on which the four (4) witnesses for the plaintiffs (sic) (meaning petitioners), led evidence in an effort to prove the allegation of presentation of forged document, (sic) (documents). That the pleadings of the appellants on this issue, is not sufficient, comprehensive and accurate as required by the Supreme Court on (sic) the case of Egolum (sic) v. Obasanjo at page 392 (supra).
He submitted that the effect of all these, is that the evidence of PW1 relating to the history of accredited and unaccredited schools or institutions in England, goes to no issue, and that it did not go to prove the allegation that exhibits C and C1, were forged.
Learned counsel referred to the evidence of PW2 which he stated that in summary, was on the issue of evaluation and accreditation of foreign qualifications and determination of their Nigerian equivalence and job placement in the Civil Service of the Federation and so on/forth, were equally not based on any pleaded facts before the tribunal.
He also referred to the evidence of the PW3 and that of the PW4 and in particular his (i.e. PW4’s) evidence that “Centre of Economic and Political Studies, does not exist, never existed and perhaps may never exist”, were based on facts not pleaded.
It is submission that the effect of these, is as stated in a of authorities to the effect, that evidence which is not based on facts pleaded, or evidence which is at variance with the facts pleaded, goes to no issue. He cited and relied on the cases of Mrs. Lydia Thompson & Anor. v. Alhaji Arowolo (2003) 7 NWLR (Pt.818) 163, (2003) 4 SCNJ 20 at 49 – per Ejiwunmi, JSC; Alade v. Olukade (1976) 2 SC 183; Mr. Awara & 2 Ors. v. Mr. Alalibo & 3 Ors. (2002) 18 NWLR (Pt.799) 484, (2002) 12 SCNJ 62 at 79; James v. Mid-Motors (1978) 11-12 SC 31 and Emegokwe v. Okadigbo (1973) 4 SC 113.
Mr. Okupe submitted that the tribunal, was correct in law, when it found that the evidence of PW1, PW2, PW3 and PW4, were at variance with the facts pleaded as regards the issue of presentation of forged document.
It is his further submission that the evidence of these witnesses, were full of material contradictions most especially, as they relate to the existence or otherwise of the school that issued exhibits C and C1 among these witnesses as, according to him, correctly found by the tribunal.
That none of these witnesses, could claim directly that he knew as a fact, that the institution, did not exist. Their sources of information, were not exhaustive or conclusive on the basis of which the tribunal could rely on to hold that exhibits C and C1, were issued by a none (sic) existence institution (sic) and thereby, making the said exhibits to be forged documents.
That these inconsistencies, contradictions and non-conclusiveness of the sources of their information, created doubt in the mind of the court (sic) (tribunal) and that this doubt, must be resolved in favour of the 1st respondent.
That the tribunal was correct, when after reviewing the entire evidence before it, came to the irresistible conclusion, that the appellants did not prove the allegation of presentation of forged document, (sic) (documents) beyond reasonable doubt.
Learned counsel referred to and reproduced the argument in the appellants’ brief at page 19, and submitted that the burden of proof beyond reasonable doubt, is on the appellants who made the allegation and does not shift to the 1st respondent.
Therefore, that for the purpose of proving the allegation of forgery, the appellants, must rely on the strength of the evidence adduced by their witnesses, and not on the evidence adduced by the respondents. He cited and relied on the case of Ayorinde v. Fayoyin (2001) FWLR (Pt.75) 483 at 510.
It is his further submission, that in any event, paragraphs 11 to 15 of Mr. Ian Wilfred (sic) (it is Wilfred) Goatman, finally put the issue of forgery, to rest. He reproduced the said paragraphs. That there is no evidence to contradict the above deposition. That the appellants submitted at pages 18 and 19 of their brief that the maker of the documents – exhibits C and C1, was a mere fiction and that the affidavit of Mr. Goatman, established the falsehood on the face of the document because, the Center of Economic and Political Studies, did not exist.
Learned counsel submitted that it is noteworthy that PW3 deposed to a counter-affidavit and annexed thereto exhibits C and E. That the minutes on it exhibit E, put it beyond any doubt, that the Centre and Economic and Political Studies existed as an institution. That this fact, was known to the Government of Borno State because, they had some of their students in that school as deposed to in paragraph 14 of Mr. Goatman’s affidavit.
He finally submitted that the appellants’ allegation that the institution, did not exist, never existed, were mere fabrications which are baseless and unfounded.
He urged the court to affirm the decision of the tribunal and hold that the appellants woefully failed to prove that the 1st and 2nd respondents, submitted forged certificates for the purpose of contesting the Governorship election.
In the reply brief of the appellants in respect to the said brief of the appellants in respect to the said brief of the 3rd to 12th respondents, Chief Awomolo (SAN) referred to pages 16 paragraph 3.11, 19 paragraph 3.13, pages 24 to 26 and paragraph 3.21, pages 27 to 28 and paragraphs 4.01, 4.05, 4.06, 4.07 and 4.08 and 4.10, 5.03 and pages 44 to 59 of the 3rd to 12th respondents and submitted that the submissions in respect of paragraph 3.11 are erroneous. In respect of paragraph 3.13, he submitted that the said respondents, joined issues with the appellants in relation to the qualification of the 1st and 2nd respondents both in the pleadings and through affidavit evidence.
Also, that the said respondents, did not appeal against the leave granted to the appellants, to respond to the affidavit of Ian Goatman. Therefore, that the respondents, cannot now complain on appeal.
In respect of paragraph 3.21, he stated that it is always convenient, for the respondents to say that the appellants did not plead material facts inspite of the salient issues raised by the appellants in the petition to which they joined issues.
As regards paragraph 4.01, it is submitted that the appellants, sufficiently pleaded the non-qualification of the 1st respondent in view of the certificates which he claimed to have possessed. That exfacie, it can been seen, that the constitutional requirement under section 318 (a) (ii) of the 1999 Constitution, was not met.
The replies to the other paragraphs of the 3rd to 12th respondents, are in effect, in my view, a repetition of the substantial and material submissions made in the appellants’ brief. The learned (SAN) concluded by again urging the court to allow the appeal and to hold that the 1st and 2nd respondents were not qualified to contest the Governorship election of 10th April, 2003, having according to learned SAN, failed to satisfy the relevant provisions of the 1999 Constitution relating to the qualification of candidates for such election.
Now, I agree with Chief Awomolo (SAN), that the issue before the Tribunal, was whether the Diploma and Certificate presented by the 1st respondent, were (not was) genuine or forged. He adds “having regards to two issuing authorities of the certificate/Diploma”
There is no doubt that section 182(1) (j) of the 1999 Constitution provides that:
“No person shall be qualified for election to the office of Governor of a State –
(i) if he has presented a forged certificate to the Independent National Electoral Commission.”
Now, in (a) of the particulars of error in law in respect of ground 1 of the grounds of appeal, the following appear:
“Section 182(i) (f) of the Constitution of the Federal Republic of Nigeria, 1999 specially (perhaps specifically) provides for a disqualification of a “candidate who has presented a forged certificate” (not that he the candidate forged the certificate) as a ground for challenging an election.”
The big question I or one will ask, is, if it is not that he the candidate, forged it/them (i.e. the certificates) who then forged it/them? The second question is, who determines that a certificate presented to INEC by a candidate, is forged? In my respectful view, these again, are the crux of the matter in controversy. Section 182(1)(f), must be read together with section 177(d) of the said Constitution for any meaningful interpretation. A false certificate to me means “of his qualification”.
In the first place, there is no evidence before the Tribunal, that the 1st respondent, forged any of the Certificates or that the issuing authority/authorities, “forged” the very certificates they issued to the 1st respondent.
In this regard, the evidence of the PW3 and especially that of the PW4, particularly under cross-examination, come into focus and are most relevant.
The tribunal, reviewed their evidence which appear at pages 384-387,396 – 402 respectively, at pages 735 – 743 for the PW3 and at pages 421 – 428; 430, 431 and 433, at pages 740 to 742 of the records.
Let me first of all; take the evidence of PW4 who was completely routed under cross-examination. This is a person who was never a member of any Inns of Court in London/Britain, swearing on oath and calling him a Christian, that he is a barrister and solicitor of the Supreme Court of England notwithstanding that he has/had never smelt enrolling in any of the Inns of Court in England.
He agreed under cross-examination by Mr. Ali, (SAN), that in England, the practice is a solicitor or a barrister or a foreign qualified lawyer who can practice as a consultant and that sometimes, such practice, is allowed by further qualification in England.
Said he still under cross-examination, inter alia, at page 429 of the records:
“It is the tradition that Barristers who appear in Supreme Court must robe in England. A practitioner who has not been called in any of the Inns in England cannot appear before the court of record.” (Italics mine)
He completely perjured himself when in his counter-affidavit at page 405 of the records; he averred that he was “practicing in the United Kingdom.”
After bluffing in his evidence-in-chief, under cross-examination, he swore at page 430, inter alia:
“…From my inquiries, I confirmed that Quentbridge Schools Ltd. was at a time a Ltd. Liability Company in England. I also confirmed that sometimes in 1965 the name was changed to Study Units Ltd. I also confirmed that in 1969 the name was changed to International Education Centres Ltd…”
In other words, he confirmed substantially, the averments in paragraphs 8,9, 10 and 11 of the affidavit of Mr. Goatman. That is to say, that the said Institute said to be non existent, exists. He swore to this fact, in paragraph 4 of his said counter-affidavit.
This witness, who in his evidence in-chief, stated that the 1st appellant was his colleague at ABUZ aria and is presently, his client, swore at pages 430-431, that he does not know the number of private Polytechnics in England as at the time he was testifying and that he does not know the number of private and public Universities they have in England also at the time he was testifying.
Said he at page 431, inter alia:
“… I attended Borno College of Basic Studies. I was together with the 1st respondent and the 1st petitioner between 1979 – 1981 when I was there. At BOCOBS I studied A level”.
At page 433 of the records, he testified on oath, still under cross-examination, inter alia:
“BOCOBS is a post – secondary Institution for ‘A’ level and remedial O’ level which the 1st respondent was doing.”
When he was given exhibit AK 7 paragraph P.6 i.e. the counter affidavit of Mr. Akinyele to read, he testified that from the exhibit, the Ministry of Education, is saying that the list of existing private Universities in UK. is not exhaustive. He also testified at page 432 of the records, that the Federal Ministry of Education, also agree that there are private institutions in UK. (United Kingdom). He also agreed also that NARIC – is an advisory body and that it only offers guidance on the likely recognition to be given to certificates.
He also agreed that NARIC has no right to make authoritative statements or to give assurances which would challenge the right of individual institutions to make their own judgment.
The point I am making, is that firstly, although the issue of minimum qualification of the 1st respondent, was no longer an issue in the tribunal, by/from the evidence of this witness – PW4 hereinabove stated, the 1st respondent attended a post-secondary Institution for “A” level and remedial ‘O’ level which he was doing.
So, by virtue of section 177(d) of the 1999 Constitution, he had possessed the minimum qualification to entitle him to contest as a Governor of his State. As a matter of fact, under re-examination, he stated that the object of a company, may empower it to set up schools.
Secondly, going by the stance of Chief Awomolo (SAN) in paragraph (d) of their particulars of error in law under ground 1 (one) of the grounds of appeal, by the evidence of the PW4 under cross-examination, the standard of proof, on the balance of probability, was in favour of the 1st respondent that their exist or existed, such a School or an Institution where the certificates in question, were or could be awarded.
There is no wonder or surprise that the tribunal at page 791 of the records, exposed the unreliability of PW4 as a witness, his contradictions and perhaps, quibbling. This witness, roundedly/vehemently, perjured himself in paragraphs 6, 8 and 11 of his said counter-affidavit.
Perhaps, may be, it is the realization that the PW4 and PW3 destroyed the case of the appellants, that Chief Awomolo (SAN), had to resort or resorted to the Alternative grounds of appeal – grounds 2 to 16 which I have reproduced hereinabove in this judgment.
The settled law, is that a plaintiff/petitioner, must rely on the strength of his own case. Where the case of the plaintiff/petitioner, supports that of the defence, of course, that is the end of the plaintiffs/petitioner’s case as has happened in the petition leading to this appeal. The 1st and 2nd respondents, rightly and wisely, in my view, did not call oral evidence and rested their case on that of the appellants, more especially, after the evidence of the PW3 and PW4.
Now, as regards the evidence of the PW3 – a Rtd (but not tired) Police Officer an Acting Asst. Commissioner of Police and who is the Chairman of the 3rd appellant, he swore on the Holy Quaran that he was not satisfied with the result of the election because, according to him, the 1st respondent is not qualified to contest the election. That the 1st respondent presented forged certificates to INEC because, again according to him, the certificates (i.e. exhibits C and C1), are not from a recognized Institution.
Although I note, that he testified under cross-examination at page 402 of the records, that he had West African School Certificate in 1961, he was a Commissioner for Education in the Borno State Government.
He swore that he did not know of the center, but there were certificates which were rejected by the Ministry from similar Institutions, because, they did not conform to the educational standard recognized by the Government of Borno State. He also testified, that through his investigation, he discovered that some citizens of Barno State who claimed to have attended such school, could not produce genuine certificates recognized by Borno State. So, the 1st respondent was not alone or the only person who produced such a certificate. The only thing, is that those certificates were not recognized by the Borno State Government or Ministry of Education. Not that the said certificates, were forged.
In spite of this evidence, this witness swore, that the 1st respondent, should be disqualified because he did not possess the required qualification and that the certificates purported to have been issued to him, by the Centre in London, is false as there was no school or college recognized as such to issue Diploma Certificate.
Said he, under cross-examination, inter alia, that the 1st respondent was elected as a Senator but he didn’t know how he was elected. That he is aware that the 1st respondent was in the Senate, before he became the Governor.
He read exhibit C attached to his counter-affidavit and swore, that the minute therein, did not state that the center of Economic and Political Studies did not exist.
He also read exhibit E attached to his said counter-affidavit arid swore that the minute thereon dated 5th May, 1981, and that going by paragraph 3 in the said exhibit, it is apparent that at that time, Borno State Government knew that there were many students in that school. He admitted that by paragraph 1 of exhibit J attached to his said counter-affidavit, it is apparent that at the time he wrote the letter, the petitioners had already gone to the Tribunal. That part of the request in the said letter, was to strengthen their case in the tribunal.
He confessed that going by paragraph 2 of the exhibit K attached to his said affidavit, the National Security Adviser to the President, requested them – (i.e. himself and the 3rd appellant), for further information as to the location and address of the institution(s). But that after the receipt of exhibit K, he did not send the address but that he continued with his search. Perhaps, he is still searching.
PW3, admitted that since December, 2003, he had/has not visited London and that he has/had never been to the Companies Registry in London.
However, he admitted that he was not at any time, present when INEC was screening the candidates and that he was never a Principal in Borno Teachers’ College.
The PW1, as rightly found as a fact by the tribunal, contradicted himself he stated the alleged non-existence of the schools. But under cross-examination, he swore that they exist. See pages 357, 359 and 360 of the Records.
The evidence of DW1 – the Chief Legal Officer of the 3rd respondent, is also pertinent. The important fact, is that he identified Forms CF001 and CF002 which were tendered and admitted in evidence as exhibits J and J1. He had also identified exhibits Hand H1. He stated that these exhibits were displayed for public scrutiny at the 3rd respondent’s office in Maiduguri. That thereafter, the screening committee of the 3rd respondent of which he is a member, the committee, verified the claims of the candidates. He said that based on the committee’s recommendations, the 1st and 2nd petitioners/appellants, as well as the 1st and 2nd respondents, were qualified and that they were cleared to contest the election.
He identified exhibit E as the declaration of result, made by the Returning Officer. That there was no protest against any of the candidates that contested the election. He said that the general requirement of the law, is the minimum educational qualification of a school certificate or its equivalent.
Under cross-examination, he confirmed the said screening of all the candidates for the April, 2003 election. That the 3rd respondent, took custody of all the documents submitted by the candidates and that the candidates, were found eligible to contest the election and so they contested.
He said that the screening committee, perused the forms and documents attached. He swore that when foreign certificates are presented before the 3rd respondent, except where there are complaints, the 3rd respondent accept the foreign certificates and Diploma on the face of it.
He testified that the 3rd respondent, has no means of verifying certificate submitted by candidates because, it is not an investigating body. That the National Security Adviser to the President, does not advise the 3rd respondent. That INEC accepted exhibits C and C1 which were presented to it by the 1st respondent to substantiate his claim of educational qualification.
That in exhibit J the educational qualification fort he 2nd respondent, is Grade II Teachers’ College. That as a member of the Screening Committee, they did not receive any objection as to the qualification of the 1st and 2nd respondents and that no suit was instituted against the 3rd respondent, regarding the clearance of the 1st and 2nd respondents.
I have taken the pains to perhaps, summarize, the salient or material evidence of the witnesses at the tribunal, because, as now settled, an appeal, is in the nature of re-hearing – See Sabru Motors (Nig.) Ltd. v. Rajab Enterprises Nig. Ltd. (2002) 4 SCNJ 370 at 382; (2002) 7 NWLR (Pt. 766) 243 at 260.
To say the least, as found by the tribunal and as stated by Mr. Ali, (SAN), the PW4, lied on oath unashamedly/unabashedly. Here is a man who belongs to the honourable legal profession, appearing before a tribunal manned by learned Judges, only to disgrace the legal profession and ridicule himself in the witness box where, undoubtedly, he must have looked a sorry sight under cross-examination.
Perhaps, I will refer with respect, to the apt pronouncement or declaration of his Lordship, Pats-Acholonu, JSC in the case of C & C Construction Co. Ltd. v. Okhai (supra). Said he, inter alia:
“To my mind, when the testimony of a witness has reached or attained the height of insipid or important exaggerations, it should be disregarded as mere petulance and treated with ignominy.” (Italics mine).
I will pause here and deal with one more point that I consider relevant to the issue in controversy.
From the submission of Chief Awomolo (SAN), that the Tribunal, ordered that the 1st respondent, cause his witness to give evidence on the makers, making and genuiness of the Diploma and Certificate pleaded by the parties by swearing to an affidavit and that the tribunal also, extended the right to give evidence by an affidavit similar to that granted to the 1st respondent, to the appellants, stricto sensu, can it be rightly said as appears to be the stance of the appellants and their learned counsel, that the 1st respondent, offered no evidence, to controvert/counter, the allegation or evidence of the appellants? I think not. As I had stated hereinabove in this judgment, that Chief Awomolo (SAN), described Mr. Goatman, “as the 1st respondent’s witness”.
Surely, in my humble opinion, the affidavit of Goatman and the counter-affidavits of the PW2 – Akinyele Rotimi Williams and PW3 – Alhaji Ibrahim Abba Gubio, constituted affidavit evidence that were before the tribunal and are part of the record of proceedings in this case/matter. I so hold. The tribunal was entitled to look at the said affidavit and make use of them. See West African Provincial Ins. Co. Ltd. v. Nigeria Tobacco Co. Ltd. (1987) 2 NWLR (Pt. 56) 299 at 308; Nwanosike v. Udosen (1993) 4 NWLR (Pt.290) 684 at 693 C.A.; Agbaisi v. Ebikorefe (1997) 4 NWLR (Pt.502) 630, (1997) SCNJ 149 at 160; Agbahomovo & Ors. v. Eduyegbe & Ors. (1999) 3 NWLR (Pt. 594) 170; (1999) 2 SCNJ 9 and recently; Alhaji Nuhu v. Alhaji Ogele (2003) 18 NWLR (Pt.852) 251, (2003) 12 SCNJ 158 at 178 – per Edozie, JSC.
Incidentally, in Chief Awomolo’s (SAN) submission, he urged or rather, invited the court to look at the documents. I have done so. He had in fact in their brief, stated that the evidence of the respondents, supported the evidence and facts produced by the appellants on the issue and that the tribunal, failed to consider them.
Again, as rightly stated by the tribunal, at page 811 of the records, and this is also settled that there is no rule of law or practice which requires a plaintiff or defendant in a civil suit to even be physically present in court or to testify if he can otherwise, prove his case. See Kehinde v. Ogunbunmi (1967) IANLR 360,369; (1968) NMLR 37 and British and French Bank Ltd. v. Solel-El-Assad (1967) NMLR 40; just to mention but a few.
A plaintiff or defendant, can also prove his case through one (1) witness without he himself, going into the witness box. See Cross-River State Newspapers Corporation v. Oni & Ors. (1995) 1NWLR (Pt. 371) 270 at 293; SCNJ 218 at 239-240 and Alhaji Lawal v. Union Bank of (Nig.) Plc. & 2 Ors. (1995) 2 NWLR (Pt.378) 407, (1995) 2 SCNJ 132 at 147 and many others.
I want to say straightaway, with all the humility in me and with profound respect, that these issues pose no difficulty to me inspite of/notwithstanding the lengthy submissions of the learned counsel for all the parties including some semantics, which I have deliberately, reproduced almost verbatim herein in this judgment.
In my respectful view, as I had stated earlier in this judgment, the central and fundamental issue in this appeal, is whether or not, the appellants, succeeded in proving their allegation that the 1st respondent knowingly, presented forged documents to the 3rd respondent – INEC and perhaps, whether he possessed minimum educational qualification under the Constitution.
In Black’s Law Dictionary 7th Edition, forgery is defined as the act of fraudulently making a false document or altering a real one to be used as if genuine. The following appear in this definition:
“While it is true that there is a distinction between fraud and forgery, and forgery contains some elements that are not included in fraud, forgeries are a species of fraud.
In essence, the crime of forgery involves the making, altering, or completing of an instrument by someone other than the ostensible maker or drawer or agent of the ostensible maker or drawer. 37 C.J.S. Forgery 2, at 66 (1997)”. (Italics mine).
It goes beyond speculation, and/or semantics, to say that to accuse or allege that a person or persons, forged or presented a forged document, is a crime or a criminal offence.
In fact, after reading the record of proceedings and ground 1 of the grounds of appeal and the arguments proferred under them, I had the impression, that the appellants and their learned counsel, mayor were perhaps “fishing” especially when it was stated that grounds 2 to 17 of the grounds of appeal filed on 12th March, 2004 are in the alternative.
Surely, “fishing” (not in troubled waters) either by an ordinary folk or professionals like Peter and his colleagues in the Holy Bible, is bound to result in the fisherman, getting whatever that comes on either in the “hook” or net or on board so to speak. It may be an electric fish, weed, mangled ropes etc., or a living edible good fish. There again, is the notice and grounds of appeal filed on 14th January, 2004, particularly ground 3 thereof which appear very amusing to me.
I suppose that the taking of the first wrong step by the appellants, started with the couching or framing of what is/was their grouse or complaint. But their case, is predicated on the said paragraph 16(1) of the petition which was reproduced by all the parties in this appeal in their respective briefs.
I have no doubt in my mind, that the allegation of the appellants against the 1st respondent, was/is an accusation of the committal of a criminal offence and I so hold. I endorse as correct and well founded, the finding and holding by the tribunal as even reproduced by the learned counsel for the appellants under ground 1 of the grounds of appeal, thus:
“There is therefore no doubt that the allegation against a party that he submitted forged certificate is a criminal allegation going by the definition of forgery in section 363 of the Penal Code and the punishment for using forged document, in section 366 of the same Code, so also the case of Ukpo v. Adede (2002) 3 NWLR (Pt. 755) 671. The allegation in para. 16(1) of the petitioners’ petition against the 1st respondent is a criminal allegation. Now what is the position of the law with regards to standard of proof required to discharge the burden in a criminal allegation? Section 138 of the Evidence Act”.
It must be noted, that the case of Ukpo v. Adede (supra), which is also reported in (2002) 3 NWLR (Pt.755) 671, (2001) FWLR (Pt. 77) 850 at 864 is a decision of this court. I am bound by it. I am not aware, nor has my attention been drawn by any learned counsel, to the fact that the said decision, has been set aside on appeal by the Supreme Court or that there is a contrary view by the apex court in respect of the state of the law ably and admirably enunciated and pronounced upon in the said decision or judgment.
Also in Aja Wakili Eli v. Zanna Musa Agid & Ors. (supra), the respected and respectable presiding Justice and an erudite and eminent Jurist – Mukhtar, JCA, stated that “an allegation of serious nature as forgery must be proved beyond reasonable doubt”. This is now firmly settled law. He also referred to the case of Anazodo (typed as Abazodo) v. Audu (supra).
But for purposes of clarity and emphasis, I or one may ask, were exhibits C and C1, issued by a fictitious or non-existent person, persons, authority or institution?
Now, Mr. Goatman, as even admitted by the appellants in their brief appeared in person before the tribunal. For reasons best known to the appellants and their counsel all the counsel, including Chief Awomolo (SAN), Chief A. Akintola (SAN), Messrs O. Wadzani, M.E. Oru, D.B. Sunama, H.M. Dlakwa, I. Makeri, A. Torti and G. Ibrahim, curiously, decided to be absent in the tribunal. It was only Chief Awomolo (SAN), who wrote for an adjournment on ground of ill health. He even applied for an adjournment to 23rd December, 2003 (i.e. two (2) days to Christmas).
However, on the application of the 1st and 2nd respondents, and for the reasons that appear in the affidavit, the tribunal ordered that Mr. Goatman, gives his evidence by an affidavit and which he did.
The appellants admit in their brief, and as appears at pages 176 and 181 of the records, later applied and their application to file a counter-affidavit in response to the said affidavit of Mr. Goatman, was duly granted. The said counter-affidavit, is at pages 203 and 204 of the records.
I note that the appellants, through their learned counsel, never applied nor did they insist, on Mr. Goatman, giving evidence in the B witness box, so that he would be liable to be cross-examined by them. They contended themselves, in swearing to and filing a counter-affidavit, which turned out not to controvert the various material averments contained in the said affidavit of Mr. Goatman. Why did all the learned counsel for the appellants, decide to be absent in the tribunal when they fully knew, that Mr. Goatman who from all interests and purposes, was a vital witness in relation to the serious allegation of forgery made against the 1st respondent (who he described in paragraph 14 of his said affidavit as “my student”), was around to testify? I or one may ask. Your guess is as good as mine. The appellants and their counsel, knew that Mr. Goatman, was coming to destroy their allegation against the 1st respondent. They chose to call PW4 who, I have in this judgment, dealt with his evidence.
However, happily, I or one may say, Chief Awomolo (SAN) in E his said oral submissions, stated that the documents i.e. exhibits C and C1, speak for themselves. I have read the said affidavit of Mr. Goatman, and I have also looked at, perused/read exhibits B, C and “P” (which are the same thing as exhibits B1, C1 and F1) and are the originals while the others, are the certified true copies. I am satisfied that they were issued not by any fictitious person or authority or institution, but by Mr. Goatman – Director of the said Centre which is a legal entity that existed in fact at the time the said certificates were issued. This fact of existence, was even confirmed on oath by the PW 4 under cross-examination as I had noted or stated hereinabove in this judgment.
I note that in the said affidavit of Mr. Goatman, he swore in paragraphs 13, 14 and 15, uncontroverted in the said counter-affidavit of PW3, as follows:
“13. That I know as a fact that about 1978 I became a Director of the Centre with full authority to admit students and sign their certificates on completion of their studies”.
“14. That I know as a fact that between July, 1981 and June, 1982 Ali Modu Sheriff, the 1st respondent was my student at the centre and he attended the school at about the same time with some other Nigerians like;
(1) Ali Kawu Lawan
(2) Mohammed Sanusi Liman
(3) Abba Jato; and
(4) Mohammed Nur Sheriff’.
15. That I know as a fact that Ali Modu Sheriff successfully completed his studies having fulfilled all the requirements prescribed for the award of Diploma and Certificate of the center and was awarded a Diploma in Business Studies with English on 27th April, 1982 and Certificate in Export, Shipping, Trade and Transport on 1st July, 1982 and these two certificates were personally signed and authenticated by me as the Director of the Centre”. (Italics mine).
This fact in paragraph 14 of the affidavit of Mr. Goatman, is in fact and indeed, confirmed in one of the documents attached by the PW3 himself to his said counter-affidavit. It is at page 207 of the records.
In my respectful view, that the certificate issued by the centre to Mohammed Sanusi Liman (No.2 student) on 22nd September, 1980, is not a recognized certificate, is beside the issue and it is of no moment. If anything, the existence of such a school, is very well known to the Nigeria Educational Authorities or the Federal Government through its Ministry of Education.
For wrote/minuted W.A. Olasebikan CIE/HE on 5th November, 1981, in reply/reaction to the minute of his ACEO of 7th September, 1981, inter alia, as follows:
“3. In view of the above, and if you have no objection, I may suggest that we immediately write to the Borno State students in that school and other similar institutions to change over to recognized alternatives.
4. You may further wish to note the responsibility of the Ministry in providing counseling/career guidance services to students generally to enable them obtain better qualifications.”
To the above, the above officer, was directed by his boss, as follows:
“CIE/HE –
Yours above refers I have no objection with your suggestion. Liaise with Scholarship Board the predicament of our students studying in such institutions and communicate in earnest”.
From these instructions, it is even clear or evident, that the students in that School, were on scholarship of the Borno, State Government.
From the above how can anybody and the appellants, with respect, have the guts of saying or even suggesting, that the said exhibits, were forged? One or I may ask. Honestly, this is, or it is most insulting and indeed libelous/defamatory, to say the least.
Afterwards, by the provision of section 177(d) of the 1999 Constitution, the minimum qualification in order to contest for the post of a Governor of a State, is evidence that such a person/candidate,
“(d) has been educated up to at least School Certificate level or its equivalent”.
In other words, passing of School certificate examination or obtaining a School Certificate, is not one of the constitutional requirements, in order to contest for the post of a Governor of a State.
Now, even if it means stretching the matter, and in order to show that the said centre, is not a fake or a fictitious school or institution, I will refer to the Memorandum of Association of the company known as and called Quentbridge School Limited attached to the said affidavit of Mr. Goatman and which is at page 152 of the records. One of the objects, for which the company was established (a)(ii) –
“To carryon either separately or in conjunction with one another all or any of the businesses of a college or school, or colleges or schools and to provide for the instruction and education of pupils in all branches of learning and knowledge and in arts and crafts of all kinds and in science, commerce and journalism and all or any other branches of – knowledge, thought, philosophy or Endeavour …”
The said certificate that the 1st respondent presented to the 3rd respondent, is the res. It is what the school or centre, gave to him and as submitted by Chief Awomolo (SAN), they speak for themselves.
I had asked and one may ask – who determines that the certificates are forged? Did the appellants call any expert to say that the certificates are forged? Did INEC say they are forged? Surely and certainly, it is the law, that he who ever asserts, must prove. See E.D. Tsokwa & Sons Co. Ltd. v. Union Bank of (Nig.) Ltd. (1996) 12 SCNJ 445 at 461-462, (1996) 9 NWLR (Pt. 471) 129 and Chief Lawson & Anor. v. Chief Ajibulu & 2 Ors. (1997) 6 SCNJ 1 at 25; (1997) 6 NWLR (Pt. 507) 14.
The question I am bound to ask is, is it forgery by the issuing authority or the school or by Mr. Goatman? Has the appellants or anybody else, proved that he had no authority – statutorily, legally or otherwise, to issue or sign on behalf of the school? There is no such evidence or proof by the appellants in the records. As I said earlier, that the said school or its certificate, is not one of the recognized ones, in my view, is non-soquitur, a non-issue and clearly of no consequence.
So, in view of the stance of the appellants and their learned counsel, that they are not saying that it was the candidate or the 1st respondent, who forged the said certificates and the alleged or purported forgery, is one of the grounds for challenging the election, as far as I am concerned, all the fuss by the appellants and their learned counsel, are with respect, an exercise in futility.
Comment:- This is just by the way and of no moment as regards this appeal. A reading of List III of (“bogus” Institutions or “Degree Mills” in the U.K., that sell Degrees, Certificates and Diplomas for money after little or no study by correspondence) that appear at pages 284 to 287 of the records – exhibit AK7, although they appear amusing, (they are 109 in number), but it is very worrisome and d1sturbing to me. One of them. is said to be run by “a self styled archbishop of old Catholic Church of England”, some others by Nigerians some of them unemployed, etc. I note however, that the School, one of the subject of the case on appeal, is not listed as one of them.
I wish to pause here and put on record, that it is not the law, that the decision of INEC as to qualification of a candidate to contest an election, is conclusive and cannot be questioned. First, sections 134(1), 136(1) & (2) and 138(1) & (2) of the Electoral Act, 2002, debunk this assertion. As held in the case of Chief Falae v. General Obasanjo & 59 Drs. (1999) 4 NWLR (Pt. 599) 476 at 515 C.A. – per Edozie, JCA (as he then was), the proper time to challenge the question of qualification to contest an election, is after the election. See also the cases of Tsoho & Anor. v. Yahaya & 5 Ors. (1999) 4 NWLR (Pt. 600) 657 at 662, 671, 673 C.A.; Peters v. David & 3 Ors. (1999) 5 NWLR (Pt. 603) 486 at 495-496 CA.; Alhaji Balewa v. Alhaji Muazu & 4 Ors. (1999) 5 NWLR (Pt. 604) 636 at 644-645 CA and Abdullahi v. Alhaji Hashidu (1999) 4 NWLR (Pt. 600) 638 at 644,648 CA – per Nzeako, JCA all of which, I referred to in my concurring contribution/judgment in the case of appeal No. CA/J/153/2003 – Bayo v. Njidda & Anor. Delivered on 2nd December, 2003 and also cited and relied on (supra), by Mr. Okupe in his oral submissions, in respect however, on the issue of standard of proof in criminal allegations. See also Election Law and Practice by Afe Babalola, 2003 at pages 134 to 140.
Secondly, I suppose that the process of election is not complete, until the tribunal gives its decision and it is affirmed by the Court of Appeal where the said election is being contested or it is the subject of litigation.
Thirdly, it is only in section 318(1) of the said Constitution – Interpretation, etc, that School Certificate or its equivalent (c) (i), (ii) and (iii) – Primary Six School Leaving Certificate or its equivalent appear. It is under or in sub – (i), (ii), (iii) and (d) that INEC, has a discretion in the matter – the words used are “acceptable” and “satisfaction”. It has no such discretion in (a) – a Secondary School Certificate or its equivalent, or Grade II Teachers’ Certificate, the City and Guilds Certificate.
If there is any truth in the said assertion, the inherent danger in such a situation, can well be imagined in that some INEC officials, will have a field day to do whatever they like especially in these days when corruption/graft, is the rule instead of the exception. May such a day, never come for now in this country! If that were the case, then the establishment of Election Tribunals under section 285 of the Constitution, 1999 where, in sub-section (f) they have original jurisdiction to hear and determine petitions as to whether –
“(a) Any person has been validly elected as a member of the National Assembly”, should have not been enacted/provided therein.
For other authorities that criminal allegations, must be proved beyond reasonable doubt, See also Keffi v. Isa (1965) NNLR 17; Alhaji Waziri Ibrahim v. Alhaji Shehu Shagari & Ors. (1983) SCNLR 176 at 201; Opia v. Ibru (1992) 3 NWLR (Pt. 231) 658 at 708-709 and Falae v. Obasanjo (1999) 4 NWLR (Pt. 599) 478 and many others.
I think and believe, that since the PW4, perhaps, with his tongue in his cheek, made a u-turn, so to speak, and admitted the existence of the said School, let his conscience, if he has any Judge and battle with him.
I note that there was no subpoena at the instance of the appellants, ever issued to the said School which the PW4 admit exist or to any of its officers/members. Let me repeat, that on the decided authorities too many to mention, including those referred to in this judgment, apart from the fact, as rightly submitted by the learned counsel for the 1st and 2nd respondents in their brief, that there are no appeal against some of the findings of fact of the tribunal, the standard of proof required in an allegations of the commission of a criminal offence like forgery, etc, is beyond reasonable doubt. See also section 138(a) of the Evidence Act. The appellants failed woefully, to attain such standard at the trial. I so hold. The consequence, is that their complaint in respect of issues 1 and 3 of the appellants, completely collapses like a pack of cards. See also the recent judgment – per Nsofor, JCA in the case of Alliance For Democracy v. Fayose & 4 Ors. (supra) at pages 30-33. Although Mr. Okupe is not counsel for the 1st and 2nd respondents, I hereby or herein endorse and accept, his submissions in their brief of argument in respect of their issues Nos. 1, 2 and 3. They not only reflect the position of the law as enunciated/laid down in a string of decided authorities by this court and the apex court of the land, they also relate to all the circumstances of the pleadings and evidence in this case leading to this instant appeal.
I will pause here to state and this is settled, that the documents, including the INEC Forms CF001 and CF002 and exhibits J and J 1 were/are admissible in evidence. This is because, they are the res – the things in their custody and of course, they were all relevant to the issues in controversy. See Ogbuanyiya & 5 Ors. v. Obi Okudo (1979) 6-9 SC 32; (1979) ANLR 105 at 112; Oshurinde v. Akande (1996) 6 NWLR (Pt.455) 383, (1996) 6 SCNJ 193 at 198 at 199-200; Dr. Ufere Torti v. Chief Chris Ukpabi (1984) 1 SC 370 at 412-413; (1984) ANLR 185 at 195 and recently; Gaji & 2 Ors. v. Pave (2003) 5 SCNJ 20 at 41; (2003) 8 NWLR (Pt. 823) 583 just to mention but a few.
Again, it must always be borne in mind, and this is also settled, that documentary evidence, needs not to be specifically pleaded in order to be admissible in evidence, so long as facts and not the evidence by which such a document is covered, are expressly pleaded. See Williams v. Construction Co. (MCC) v. Azubuike (1990) 3 NWLR (Pt. 136) 74; (1990) 5 SCNJ 75; Alhaji B. Thanni v. Saibu & Ors. (1977) 2 SC 89 at 114; U.A.C. Ltd. v. Owuade 13 WACA 207; Odunsi v. Bamgbala (1995) 1NWLR (Pt. 374) 641 at 667; (1995) 1 SCNJ 275; Ipinlaiye II v. Chief Olukotun (1996) 6 NWLR (Pt. 453) 148 at 166; (1996) 6 SCNJ 74 at 93-96 and recently, Okonkwo v. Co-operative & Commerce Bank (Nig.) Plc. & 2 Ors. (2003) 8 NWLR (Pt. 822) 347; (2003) 2 SCNJ 90 at 136 and many others.
In other words, in some cases, unpleaded documents, depending on the nature of the claim, may clearly be seen to constitute evidence by which material facts, are to be proved and will be admitted as evidence, if not pleaded. See Ramchand Naraindas Sadhwani v. Sadhwani (Nig.) Ltd. (1989) 2 NWLR (Pt. 101) 72 CA.
From all these authorities, Chief Awomolo (SAN), can now see that all the fuss, about the tribunal admitting or not admitting the said documents, amount, with respect, to standing on quick sand and a mere dissipation of unnecessary energy in the circumstances. I so hold. Grounds 1, 2 and 4 of the notice of appeal filed on 14th January, 2004 therefore, fail and are hereby dismissed.
I, with respect, do not find any relevance to the case of Owena Bank Ltd. v. Etoile Commerciale, S.A. (supra) (which is a Privy Council decision) – either in respect of Mr. Okupe’s submissions at page 56 of their brief, or even in the instant appeal. The holdings in the said case, have nothing to do with the oral submissions of Mr. Okupe, that since exhibits C and C1, emanated from a foreign country i.e. U.K., and that there must be a pronouncement by the foreign court since, the documents are said to be forged. Where this is to be the case, then, it should have been a great authority in this appeal. But it is not! It dealt with abuse of courts process and the attitude of the court in respect thereof. Counsel, I advise with respect, should not and should please, refrain from citing and relying on an authority that does not support their submissions in court.
I therefore, resolve the said issues Nos. 1 and 3 of the appellants against the appellants and in favour of the respondents. Issues 1 and 3 of the respondents are framed negatively. The answer, is that the tribunal, were correct and right. The consequence, is that grounds 1,2,3,4,5,6,7,8,9, 10, 11 and 17 of the notice of appeal filed on 12th March, 2004, upon which the said Issues cover, also fail and they are accordingly, dismissed.
Now, let me deal quickly with issue No.4 of the appellants and that of the 1st and 2nd respondents and issue No.3 of the 3rd to 12th respondents.
The possession of a Grade II Teachers’ Certificate in my respectful view, is one of the constitutional provisions in section 177(d) and having regard to the provisions of section 187(2) of the 1999 Constitution.
The appellants never produced any evidence to the effect, that the 2nd respondent, never attended a primary school up to school certificate level or its equivalent either in Borno State or any where else in Nigeria. Again, the principle of he who asserts, must prove also applies in this case. The appellants, failed to prove and did not prove, that the 2nd respondent, have not been educated up to at least School Certificate level or its equivalent. I so hold.
However, for a better appreciation, clarity and completeness and for purposes of emphasis even at the risk of repetition, if the Grade II Teachers’ Certificate, is the equivalent, the 2nd respondent as admitted by the appellants, submitted photocopies of his credentials to the 3rd respondent – INEC. The 3rd respondent, produced the said documents at the tribunal which were in their custody and being the best evidence, and were admitted as exhibits J and J1, then, in my respective view, there was no need for the 2nd respondent, to go into the witness box, and give evidence in respect of the said documents that were before the tribunal.
However, since the appellants asserted that the 2nd respondent, did not possess the said certificates, there is no evidence in the records, that they ever caused to be subpoenaed, either the authorities of that School or the principal of the school or even the Borno State Ministry of Education, to produce before the tribunal, their own official copy of the said certificate and/or to give evidence in the witness box, that the 2nd respondent, did not ever attend that school at all.
The appellants, only subpoened the Federal Ministry of Education, Abuja to tender the certified true copy of the result of candidates who sat for Grade II Teachers’ Examination conducted by NTI Kadunafor Bomo Teachers College for Year 1986. Objection was taken as to its admissibility and which objection, was sustained by the tribunal for the reasons that appear in the ruling. See pages 371-373 of the records. The document was marked rejected.
So, by their failure to subpoen those I mentioned hereinabove, and as they asserted, the appellants, completely failed to prove that the 2nd respondent, did not possess the said certificate.
Again, if the Grade II Teacher’s Certificate, is equivalent to a School Certificate, by virtue of section 177(d) of the 1999 Constitution, the only qualification required, is that the candidate, had been educated up to at least Grade II Teachers’ Certificate and not that he obtained or was awarded the certificate. Again, it could be seen, that there was the need, to have investigated and call witness/witnesses in respect of this issue. See the case of Barrister Chukwu v. Mr. Icheonwo & 6 Ors. (1999) 4 NWLR (Pt. 600) 587 at 596 para. E-F CA – per Akaahs, JCA cited and relied on by Mr. Okupe.
Again, what the appellants applied for in their subpoena, was “a statement of result of Grade II Teachers’ Certificate Examination issued by Borno Teachers College Maiduguri”. When Chief Awomolo (SAN), sought to tender it, objection was taken by Mr. Ali (SAN). Chief Awomolo (SAN), withdrew the document. See page 375 of the records.
That of course, was the end of the ground the appellants have pitched their net so to speak. They were therefore left dry and bare so to say. The appellants failed woefully to prove their said allegation against the 2nd respondent even on the preponderance of evidence.
I therefore, agree with Mr. Okupe, that the appellants, having put the educational qualification of the 2nd respondent in issue, and having averred in their pleadings in the petition, that the 2nd respondent, did not submit his credentials to INEC for purpose of verification, the documents submitted by the 2nd respondent, became relevant and admissible.
I also agree with his submission that the circumstances, which would justify this court to interfere, with the findings of the tribunal, do not exist in this instant appeal. I will therefore, not interfere with the said findings that are hereby sustained/affirmed.
I also hold that the judgment of the tribunal, is not against the weight of evidence adduced by the appellants. Rather, the totality of the evidence of the appellants’ said witnesses, gives credence and support, to the said judgment of the tribunal.
In the light of the above, grounds 14, 15, 16 and 17 of the grounds of appeal, fail and they are accordingly dismissed. Issue No.4 of the appellants as couched, is therefore, answered by me, in the affirmative. The remaining grounds 12 and 13 of the grounds of appeal, have in fact, been considered and determined by me while dealing with other issues in this judgment.
As far as I am concerned, the consideration and determination of issues Nos. 1, 3 and 4 of the appellants which are the main thrust and crux of the entire complaints of the appellants should have been the end of this appeal. The Supreme Court had earlier, stated, that intermediate appellate courts including this court, must consider all issues properly raised or formulated by the parties and pronounce on them. That failure to do so, results in breach of right to fair hearing. See Hon. E.O. Araka v. Ambrose N. Ejeagwu (2000) 12 SCNJ 206; (2000) 15NWLR (Pt. 692) 684 at 718 and Ishaya Bamaiyi v. The State & 4 Ors. (2001) 8 NWLR (Pt. 715) 270 at 285; (2001) 4 SCNJ 103 at 116-117.
But in the case of 7-Up Bottling Co. Ltd. & 2 Ors. v. Abiola & Sons Bottling Co. Ltd. (2001) 6 SCNJ 18 at 32; (2001) 13 NWLR (Pt. 730) 469 at 4 93, the Supreme Court, in the lead judgment of Onu, JSC citing the cases of Kotoye v. CB.N. (1989) 1 NWLR (Pt. 98) 419; also reported in (1989) 2 SCNJ 31); Union Bank of Nigeria Ltd. v. Nwaokolo (1995) 6 NWLR (Pt. 400) 127; also reported in (1995) 4 SCNJ 93, and Bamaiyi v. The State (supra), held by the majority of 3.2, that although it is the duty of an appellate court to consider all issues placed before it, but that where it is of the view that a consideration of one, is enough to dispose of the appeal, it is not under any obligation to consider all the other issues posed.
However, Ogundare, JSC (of blessed memory) at page 42 of the SCNJ report or at page 507 of the NWLR paragraphs F-H and supported by Ogwuegbu, JSC at page 49 of the SCNJ report or at page 512 of the NWLR paragraphs D-H referred to several cases in support and reproduced some of them, held, that this should and ought to be so, if it is the final appellate court that can rely on the determination of one issue. That but for an intermediate court, it must consider all the issues.
It is now firmly settled, that where there are two conflicting decisions by a higher court or tribunal, it will not be improper for a Judge say of first instance, to review the points of law involved in the issue and thus, select or adopt which line of decision he should follow.
It is therefore, consoling to me, that although I am bound by the later or latest decision of the apex court of the land, and that I can with respect, follow the same – See Young v. Bristol Aeroplanes Co. Ltd. (1944) 2 All ER 293 at 300, and NEPA & Obayangbona & 60rs. v. Mrs. P. O. Onah (1997) 1 SCNJ 220 at 226; (1997) 1NWLR (Pt.484) 680 at 689 per Mohammed, JSC.
I will or prefer to follow, with respect, the said latest decision.

That being the case, it is my respectful but firm view, that the consideration by me of issues Nos. 1,2 and 4 of the appellants and those of the 1st and 2nd respondents and issues 1,2 and 3 of the 3rd – 12th respondents, disposes and is enough, to dispose this appeal. This is because, in all appeals in respect of the National Assembly/Governorship and Legislative Houses Elections, this court is the final and ultimate appellate court by virtue of section 246(3) of the Constitution of the Federal Republic of Nigeria, 1999. Thus, the decisions of this court in respect thereof, including interlocutory decisions, shall not be subject to any further appeal to or review by any other court. See Apostle Selede Esewe v. Chief Nelson Tebesagbehagbe & 4 Ors. (1988) 5 NWLR (Pt. 93) 134 at 137; James G. Orubu v. N.E.C. & 13 Ors. (1988) 5 NWLR (Pt.94) 323, (1989) 12 SCNJ 254, (1989) 2 NEPLR 24 at 26 ratio 12; Rev. Hyde Onuaguluchi v. Ndu & 2 Ors. (2001) 7 NWLR (Pt.712) 309, (2001) 3, SCNJ 110 at 124 and just recently, Chief Sgt. Awuse v. Dr. Peter Odili & 4 Ors. (2003) 18 NWLR (Pt. 851) 116 at 151, 153, 157 and 169, (2003) II SCNJ 88 at 98, 100.
So, even going by the said minority views of the two learned Justices of the Supreme Court, with respect, this court being the final appellate court, in this appeal, is therefore, entitled, in all the circumstances of this case, not to consider the other issues raised by the parties as they are, in my respectful view, no longer relevant, having regard to the determination of the pivotal, central, fundamental, crucial or very material issues of the controversy/matter, relating to the 1st and 2nd respondents’ qualification to contest the said election. I so hold.
Before concluding this judgment, I wish to make very few comments or observations. With the greatest humility and respect to the learned counsel for the appellants, I regard this case leading to this appeal and its contest at the tribunal and in this court, as perhaps, a storm in a teacup. In my humble but firm view, they amount to much ado about nothing.
At the polls, the electorate showed their preference of the candidate for the office of the Governor. The appellants, were resoundedly, beaten at the said election by a very wide and comfortable margin or majority of 240, 343 votes in favour of the 1st and 2nd respondents. This fact at least, was admitted under cross-examination, by the PW3.
When the 1st respondent contested and won as a Senator, and represented his senatorial zone of Borno State in the Senate, he was qualified to contest the election. But when he won as a Governor, he was not or no longer qualified because, according to the appellants, he was alleged to have presented forged certificates. The whole thing looks or sounds amusing, if not ridiculous to me having regard to the totality of the evidence of the said witnesses for the appellants. Remarkably, the PW3 in his said letter to the National Security Adviser to the President of the Federal Republic of Nigeria, admitted at the trial, and stated in the said letter, that it was written, in order to strengthen their case that was already pending at the tribunal and therefore, sub-judice. But when he was asked by the said adviser, to furnish him with certain information specified in the reply, he also admitted at the trial, that he never again responded to that request. The reason for his refusal or failure to do so, could not be far fetched. Mr. Goatman had arrived at the scene of battle or trial, and was to testify before the tribunal.
Honestly speaking, for Chief Awomolo (SAN) and his steam, to describe the said judgment of the tribunal as being perverse, (and it is not and I so hold), is indeed regrettable, unfortunate and unfair. The attack on the learned Judges of the tribunal (who it has not been shown by them that they had any stake in the matter/controversy), and all the tenuous insinuations that are evident in particulars (a) of ground 5 of the grounds of appeal and in the briefs of the appellants, are with respect, unjustified and indeed, uncalled for in my humble opinion or respectful view. I know and I am aware, that in all election contests in this country Nigeria, only very few Nigerians, accept defeat, if any or if at all.
Finally, I note that the trial of this case at the tribunal, was in my view, unnecessarily and unduly protracted, having regard to the reasons that appear in the record of proceedings. Too bad!
In conclusion, in the final analysis or end result, I find as a fact and hold, that in all the circumstances of this case leading to this appeal, this appeal, with profound respect to the learned counsel for the appellants, is unmeritorious. It lacks and it is indeed, devoid of any substance or merit. It fails and it is accordingly dismissed. I hereby affirm the well considered judgment of the tribunal delivered on 2nd March, 2004 which I am unable and cannot therefore, fault.

Costs follow the event. The 1st and 2nd respondents are entitled to costs. They are awarded N10,000.00 (ten thousand naira) costs payable to them by the appellants. As for the 3rd to 12th respondents, no order as to costs.

MUKHTAR, J.C.A.: I have had the opportunity of reading in advance the lead judgment delivered by my learned brother, Ogbuagu, JCA. I would by way of emphasis touch on the preliminary objection by learned Senior Advocate of Nigeria for the 1st respondent and some of the salient issues in the appeal proper.
As per the principles in Nsirim v. Nsirim (1990) 3 NWLR (Pt.138) 285, (1990) 5 SCNJ 174, learned S.A.N. moved his objection and adopted his argument on the objection contained in the 1st and 2nd respondents’ brief of argument. The 1st and 2nd respondents’ grouse with the grounds of appeal is that grounds 1,3,5, 11, 13, 14 and 16 are all argumentative and incompetent. I will discuss two of the grounds specifically, and then proceed with the others in general, starting with ground (1) which the learned SAN argued is general in terms and evasive. Learned SAN has not canvassed argument in respect of each ground of appeal attacked, but merely made blanket submissions in respect of all the grounds objected to. I have perused I ground (1) of appeal and I fail to see that it is general in terms and evasive. The ground, to my mind is categorical and not at all evasive. The said ground (1) of appeal therefore stays. Ground (8), even though a ground of law is not general in terms and not evasive. If particulars were supplied, they may have thrown more light to the specific nature of the complaints, but that does not mean that it is incompetent, as authorities abound that a ground of appeal need not be supported with particulars once the ground is clear and succinct enough and the particulars of complaint are incorporated in the body of the ground. See Ayua v. Adasu (1992) 3 NWLR (Pt. 231) 598. I am of the view that the particulars required in this ground are so incorporated in the body of the ground to wit I find the ground quite competent. These arguments above apply to the objections raised in respect of the other grounds i.e. grounds 2, 3, 5, 6, 7, 9,10,11,12, 13, 14, 15 and 16, which I find competent, and not liable to be struck out. In this regard all the grounds of appeal in this appeal remain, and I overrule the preliminary objection raised.
On the appeal proper, the grievance of the appellants is the disqualification/non-qualification of the respondents, and I believe the success is hinged on whether or not the appellants proved their complaints in the petition before the Election Tribunal. Though learned SAN for the appellants has raised four issues for determination in the appellants’ brief of argument, I will concentrate on only issues (1), (3) and (4), which to my mind are more salient and go to the root of the appellants’ complaints against the 1st and 2nd respondents. I will start with issue (1) which is, whether the Judges of the Election Tribunal correctly determined the issue of allegation of presentation of forged certificates. The relevant pleadings in respect of this issue read:
(16) Your petitioners state that some of the facts on which they shall be relying upon in support of the grounds for challenging the election stated in paragraphs 11, 12 and 15 above are as follows:
(i) The 1st respondent submitted forged certificates to the Independent National Electoral Commission and the State Security Service. Particulars of the said certificates are:
(a) A Diploma in Business Studies with English dated 27th April, 1982 and purportedly issued by a Centre of Economic and Political Studies in Association with the Business Language School, London.
(b) A Certificate in Export, Shipping, Trade and Transport dated 1st July, 1982 also purportedly issued by the same Centre of Economic and Political Studies, London.

The burden of proving the above allegations was on the appellants/petitioners, for they have made assertions, which the law says that they must prove. See section 135 of the Evidence Act, Cap. 112, 1990, Laws of the Federation of Nigeria. That is one aspect of the case, (which is the civil aspect) for which the provision of the above law applies on the standard of proof. The other aspect is that of proof in the allegation of crime, which the petition smacks of, and for which the standard of proof is proof beyond reasonable doubt. See section 138 of the Evidence Act, supra. I will consider this later aspect of the case first. In considering the propriety of whether the allegation is criminal in nature I will look at the allegations critically. The allegation is that the 1st respondent submitted forged certificates. This is an act that is recognized in the Penal Code as a crime, and the very nature of the act is contained in S. 366 of the said Penal Code, the provision of which stipulates thus:
“Whoever fraudulently or dishonestly used as genuine any document which he or has reason to believe to be a forged document shall be punished in the same manner as if he had forged such document”.
The very fact that the 1st respondent presented forged certificates as genuine for the purpose of making INEC believe he was qualified to stand for the Gubernatorial Election of Borno State makes him a suspect for the commission of the crime under S. 368 of the Penal Code. In this respect, this allegation must be proved beyond reasonable doubt by the appellants/petitioners who made the allegation. The One million naira question is, was that allegation proved beyond reasonable doubt? I Think not, for going through the evidence adduced by the petitioners, I have failed to see that the allegations were proved. The evidence of all the petition witnesses was neither here nor there on the proof of the genuineness or other wise of the certificates. Even the counter-affidavit filed in respect of the affidavit of the 1st respondent’s witness, Mr. Goatman did not successfully debunk the depositions in the affidavit proving the existence of the certificates. The position of the law is that facts in an affidavit, that are not debunked or discredited remain good and credible evidence that must be relied upon by a court or tribunal as they are deemed to be admitted, the later being the case here. See Nwabuoku v. Otti (1961) 2 SCNLR 232; Ogoejofo v. Ogoejofo (2002) 12NWLR (Pt. 780) 171: and N.N.B. Plc. v. Denclag (2001) 1NWLR (Pt. 695) 542.
The learned tribunal was therefore right when it held thus:
“Having considered the evidence adduced by the petitioners in the petition, it is our view that the petitioners did not prove that the 1st respondent submitted forged certificates to the 3rd respondent (INEC) and we so hold”.
I hold that the tribunal did not err when it held that the allegation was criminal, which must be proved in accordance with the proof required by S. 138 of the Evidence Act supra, irrespective of the provision of S. 182 of the Constitution of the Federal Republic of Nigeria, 1990. Although S. 182(2) of the said Constitution does not create a criminal offence, I cannot shot my eyes to the fact that the allegation is a criminal one, as it shows the 1st respondent as one who has committed a criminal act, in which case commission of crime was directly in issue.
Then the other aspect of the allegation, if it is merely civil in nature. Assuming that the allegation is not that of the commission of crime (which I don’t agree with) but merely civil in nature, the onus of proving the allegation is on the petitioners, and the onus does not shift until they have proved their claim on the preponderance of evidence, and balance of probabilities. Again, a careful perusal of all the evidence adduced by the appellants/petitioners do not in any way disclose any proof of these petitioners’ assertions. They have neither adduced evidence nor proved that the institutions where the alleged certificates were issued were not in existence nor that the certificates were forged. It is trite that parties in civil suits must prove their case on preponderance of evidence, and the balance of probabilities. See the cases of Elias v. Omo-Bare (1982) 5 SC 25; Odunsi v. Bamgbala (1995) 1 NWLR (Pt. 374) 641 and Military Administrator of Benue State v. Ulegede (2001) 17NWLR (Pt. 741) 194. It is after the burden of proving the case has been discharged in accordance with the above principle of law that the burden shifts and continues to shift, but where a party fails to discharge this burden then the opponent need not prove any fact, and the party alleging cannot rely on the weakness of the opponent’s case. The position of the law is that a party must prove its case on credible evidence of its witnesses and is not at liberty in law to make a case or rely on the weakness of its opposite party in order to succeed. See Woluchem v. Gudi (1981) 5 SC 291 and Oyeneyin v. Akinkugbe (2001) 1 NWLR (Pt. 693) 40.
In conclusion, my answer to the above issue is in the affirmative, and so all the grounds of appeal married to the issue are not, meritorious and deserve to be dismissed.
The third issue is whether the Judges of the Election Tribunal were right when they concluded that the 1st respondent possessed minimum educational qualification under Ss. 177 and 318 of the Constitution of the Federal Republic of Nigeria 1999. The qualifications for election to the office of Governor of a State are stated in S. 177 of the Constitution of the Federal Republic of Nigeria supra, and one that is relevant to this discussion is (3) which reads:
“He has been educated up to at least School Certificate level or its equivalent”. Then S.318 of the said Constitution defines School Certificate or its equivalent, to mean amongst others, “(ii) attendance at courses and training in such institution as may be acceptable to the Independent National Electoral Commission for periods totaling up to a minimum of one year. Then there is (d) which stipulates any other qualification acceptable by the Independent National Electoral Commission. On this last provision, DW1, an officer of the 3rd respondent gave the following testimony inter alia:
“After the display of the personal particulars as submitted by the political parties, the 3rd respondent through its screening Committee of which I was a member to (sic) verify the claims of the candidates which we did. Based on the committees recommendation that the 1st and 2nd petitioners as well as 1st and 2nd respondents qualified for the office of the Governor of Borno State, they cleared to contest the said election”.
The above piece of evidence was not debunked in the course of cross-examination, and the law is trite that evidence that is relevant to the issue in controversy and that has not been discredited is good and reliable evidence that ought to be relied upon and accepted by a court. See Obiami Brick & Stones (Nig.) Ltd. v. A.C.B. Ltd. (1992) 3 NWLR (Pt. 229) 260 and Iriri v. Irhurhobira (1991) 2 NWLR (Pt. 173) 252.
The learned tribunal was in my view right when it found the following:
“It is therefore clear from the evidence of DW12 that the 1st respondent was found to be educationally qualified to contest the election into the office of Governor of Borno State. By accepting exhibits C and C1 the 1st respondent has satisfied the constitutional requirement as stated in section 177 of the Constitution and section 318 of the same under paragraph (d) definition of School Certificate or its equivalent”.
I refuse to subscribe to the argument on the interpretation of the provision (d), the learned SAN for the appellants is wont to give to it in the appellants’ brief of argument.
Again, my answer to this issue No. (3) is in the affirmative, and the grounds of appeal it covers fail and are dismissed.
The last issue for determination, which is the last issue 1 said I will emphasise on, is, whether the Judges of the Election Tribunal were correct when they held that the 2nd respondent possess the Grade II Teachers Certificate, with which he was cleared to contest and indeed contested the election as Deputy Governor of the 1st respondent on 19th day of April, 2003.
The case of the appellants/petitioners against the 2nd respondent is contained in paragraph 16 of the petition where they averred thus:
“The 2nd respondent does not have the minimum educational qualification prescribed by the Constitution of Nigeria, 1999, to enable him contest for or hold the office of Deputy Governor”.
“The respondent did not supply any or adequate information and record of his credentials to the 3rd respondent to enable a proper verification take place”.
Perhaps I should per use the evidence adduced by the appellants in support of the averments at this juncture. PW3, the PDP Chairman attempted to give evidence in support of the averments as follows:
“In the case of the 2nd respondent he claimed he went to Borno Teachers College Maiduguri and he could not produce certificate to testify his claim and there is no evidence that he finished that school”.
I say attempted, because I cannot fathom why the petitioner would consider DW3 as the proper person to give such evidence, in all seriousness. I mean any reasonable man would imagine that PW3 was not in a position to give such evidence for he was in no position to say whether the 2nd respondent, read or finished the Grade II Teachers Course or in fact obtained a certificate for it. Me think the appropriate person to call should have been the Principal of the Teachers College who is in custody of the records of students of the college or a staff of the Borno State Ministry of Education, (not with due respect) a former Commissioner for Education of the State, who is most likely not familiar with such detailed facts. It is only the current authorities that can categorically prove the allegations in the averments. The appellants/petitioners definitely failed to prove their allegation and as I have held earlier on the law is settled that he who asserts must prove. Another aspect of the case that I would like to consider is the averment of the 1st and 2nd respondents in paragraph (3) of their pleadings, which reads:
“3(iii)(a) The 2nd respondent possesses the minimum education requirement to qualify him as a Deputy Governor to the 1st respondent in that he possesses First School Leaving Certificate and the Teachers College Certificate both of which will be tendered at the hearing of this petition.
(c) That the 2nd respondent supplied all the adequate information required by the 3rd respondent which made the 2nd respondent to be a running mate to the 1st respondent.”
Although the 2nd respondent may have made the above assertion the burden did not shift to him to prove that he possessed the certificate since the petitioners/appellants did not prove their own assertions, and as I have already held earlier on the law is clear and settled on this position. See the cases of Military Administrator of Benue State v. Ulegede (supra) etc., above. The heavy weather made of the non-production of the Grade II Teachers Certificate therefore comes to naught. I agree with the finding of the tribunal which read:
“The petitioners who alleged that the 2nd respondent did not possess the required educational qualification did not prove their allegation on the balance of probabilities as required by law”.
Again, the petitioners/appellants cannot expect to succeed on the weakness of the respondents’ case, (that is if at all it was weak) to succeed. Again, my answer to this last issue is in the affirmative and the related grounds of appeal are dismissed. We have been told that findings of facts that are supported by relevant and reliable evidence must not be d1sturbed by an appellate court, and since I hold that all the finding of facts are not perverse I see no reason why this court should d1sturb or interfere with it. See Tangale Traditional Council v. Fawu (2001) 17NWLR (pt. 742) 293; Balogun v. Agboola (1974) 10 SC 111; and Govenor v. Laffliba (1974) 10 SC 227.
In addition to the above, I am in full agreement with the reasonings and conclusion reached in the lead judgment that the appeal has no substance, and should be dismissed. I abide by the order of costs made in the lead judgment.

OBADINA, J.C.A.: I had a preview in draft the lead judgment of my learned brother, Ogbuagu, JCA, just delivered. I agree with his reasoning and conclusion that the appeal lacks merit. I may however wish by way of emphasis comment on one or two points in the appeal.
The main complaints of the petitioners/appellants against the 1st and 2nd respondents are two, namely:-
(i) Disqualification and
(ii) Non-qualification, of the 1st and 2nd respondents.
In pleading the facts in support of the disqualification and non-qualification of the 1st and 2nd respondents, the appellants in paragraphs 15(i) and 16(i) and (ii) of the petition stated as follows:
“15. Your petitioners are challenging the result of the election as declared by the 3rd and 4th respondents on the grounds that:
(i) The 1st respondent and the 2nd respondent were not qualified to contest for the office of Governor and Deputy Governor, respectively, at the time of the election as they were at the said time and up till now under a legal/constitutional incapacity which prevents them from contesting for and holding the office of Governor and Deputy Governor, respectively.
16. Your petitioners state that some of the facts on which they shall be relying upon in support of the grounds for challenging the election stated in paragraphs 11, 12 and 13 above are as follows:
(i) The 1st respondent submitted forged certificates to the Independent National Electoral Commission and the State Security Service. Particulars of the said certificates are:
(a) A Diploma in Business Studies with English dated 27th day of April, 1982 and purportedly issued by a ‘Center of Economic and Political Studies in Association with the Business Language School, London.’
(b) A certificate in Export Shipping Trade and Transport dated 1st July, 1982 also purportedly issued by the same Center of Economic and Political Studies, London.
(ii) The 2nd respondent does not have the minimum educational qualification prescribed by the Constitution of Nigeria, 1999 to enable him contest for or hold the office of Deputy Governor. The petitioners shall rely on examination records of the relevant educational authorities at the trial of this petition.”
The 1st and 2nd respondents denied the averments and specifically pleaded as follows:
(i) That the respondents were not at the time of the election and up till now not under any legal/constitutional incapacity which disqualified them from contesting election into the office of Governor and Deputy Governor respectively.
(ii) The respondents deny paragraph 15(ii) of the petition and put the petitioners to the strictest proof thereof. Further the respondents ask for further and better particulars of allegations contained in the said paragraph …
The respondents deny the averments contained in paragraph 16 of the petition and state as follows:
(i) The 1st respondent never submitted forged certificates to the Independent National Electoral Commission and the state security services as all the certificates submitted to the above named bodies are genuine as particularized in paragraph 16(i) (a) and (b) of the petition.
(ii) Furthermore the 1st respondent has a First School Leaving Certificate (i) a Diploma in Business Studies in English from Centre of Economic and Political Studies London, in 1981-82, and (ii) Diploma in Business Studies, English from Centre of Economic and Political Studies London, issued on 27th day of April, 1982.
The certificates were accepted by the 3rd and 4th respondents and in compliance with the 1999 Constitution and the Electoral Act, 2002.
(iii) The respondents deny paragraph 16(i), (ii), (iii) and (iv) of the petition and will put the petitioners to the strictest proof thereof. Further and in answer to the said paragraph 16 (ii), (iii) and (iv) the 2nd respondent states:
(a) That the 2nd respondent possess (sic) the minimum educational requirements to qualify him as a Deputy Governor to the 1st respondent in that he possess (sic) 1st School Leaving Certificate and the Teachers College Certificate both of which will be tendered at the hearing of this petition.
(b) That the 2nd respondent supplied all the adequate information required by the 3rd respondent which made the 2nd respondent to be a running mate to the 1st respondent.
(c) That the 2nd respondent submitted himself for security clearance and was accordingly cleared by the security agents.”
On the state of pleadings issues were joined by the parties on the issues of:
(i) Disqualification and
(ii) Non-qualification of the 1st and 2nd respondents.
From the state of the pleadings, the allegation of the petitioners/appellants is that the 1st respondent presented forged certificates to the Independent National Electoral Commission, and was therefore caught by the provisions of section 182(i) (j) of the 1999 Constitution. Section 182(i) (j) of the 1999 Constitution provides as follows:
“182(i) No person shall be qualified for election to the office of Governor of a State if:
(i) …
(j) he has presented a ‘forged’ certificate to the Independent National Electoral Commission.”
The law is trite that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. Section 137 of the Evidence Act, Cap. 112 of the Laws of the Federation, 1990 provides as follows:
“137(1) In civil cases the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.
(2) If such party adduces evidence which ought reasonably to satisfy a jury that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced; and so on successively, until all the issues in the pleadings have been dealt with.”
To prove that the 1st respondent was caught by the provisions of section 182(i) (j) of the 1999 Constitution, the petitioners/appellants must prove:-
(1) that the certificates presented by the 1st respondent to Independent National Electoral Commission were forged;
(2) that it was the 1st respondent that presented the certificates.
In order to prove their case, the appellants called four (4) witnesses to state in effect that the Diploma and Certificate presented by the 1st respondent to Independent National Electoral Commission was forged, in that the issuing authority of the said two documents did not exist. In their own case, the 1st and 2nd respondents called one witness who with the leave of the tribunal gave evidence on affidavit. The 3rd – 12th respondents also called one witness. The learned tribunal in its judgment held that the petitioners/appellants did not prove the allegation of presentation of forged certificate beyond reasonable doubt.
The learned counsel to the appellants in his brief submitted with all seriousness that the Election Tribunal had no duty importing into section 182(i) (j) of the 1999 Constitution, the element of ‘fraudulently or dishonestly use as genuine’ or that the presenter knew or has reason to believe as contained in section 366 of the penal code, in the interpretation of section 182(i)(j) of the 1999 Constitution. The learned counsel referred to pages 713 – 825 of the record of appeal wherein the learned tribunal dealt with the issue that an allegation against a party that he submitted forged certificates was a criminal allegation going by the definition of ‘forging’ in section 363 and the punishment for using forged document in section 366 of the penal code. He submitted that the learned tribunal had no power to alter, amend or import the strange elements of the penal code by way of amendment, expansion, or re-writing the provisions of the Constitution. He submitted that the provision of section 182(i) (j) of the 1999 Constitution standing as a charge can not be basis of criminal trial. He argued that the Election Tribunal is like a specially created domestic tribunal, created by law to determine allegation for the purpose of discipline, but had no power to try allegations of crime. He stated that it could only investigate and try any person for acts considered as misconduct even though, it might resemble commission of crime. He submitted that in such proceedings there was no requirement of proof beyond reasonable doubt. He submitted that the provision of section 182(i) (j) standing as a charge cannot be basis of criminal trial. He referred to the case of Medical and Dental Practitioners Disciplinary Tribunal v. Okonkwo (2001) FWLR (Pt. 44) 542; Sunday Erhabor Uso & Ors. v. Chief F. A. Okotie-Eboh, Unreported judgment of the Supreme Court, in suit F.S.C. 407/1959 of 15th day of June, 1961 and submitted that the Constitution presented no criminal imputation or sanction to justify the incorporation of crime by interpretative reference. He referred to sections 21 and 134 of the Electoral Act, 2002 and the case of Alhaji Abdullahi Usman Matori v. Alhaji Aminu Mohammed Dan Bauchi & Ors. (2004) FWLR (Pt. 197) 1010 and submitted that it was dangerous to extrapolate allegations which were of personal act of the person with those committed by a third person not before the court. He submitted that whoever forged the documents were not before the court. He again referred to the Okonkwo’s case (supra) and asked whether on the charge as stated in section 182(1) (j) of the Constitution and stated in paragraph 16 of the petition, had the trial been before a court whether the 1st respondent would have been found guilty of the offence under sections 363 and 366 of the Penal Code? He quickly answered the question by submitting that the 1st respondent could not have been convicted of an offence because the basic Penal Code elements were not present. He referred to the petition and argued that the 1st respondent was not being accused of the allegation of crime. He urged the court to hold that the tribunal was wrong in law when it held that the allegation of presentation of forged certificates constituted an offence and a criminal allegation under section 366 of the Penal Code. He submitted that the tribunal was also wrong when it applied section 138 of the Evidence Act that the standard of proof required was beyond a reasonable doubt.
The learned counsel to the 1st and 2nd respondents submitted to the contrary. He submitted with force that the allegation of forgery was very central to the case of the appellants, against the 1st respondent, therefore the findings of the trial tribunal at page 791 of the record of appeal on the point could not be faulted. He submitted that the allegation is a criminal allegation and must be proved beyond reasonable doubt. He submitted that not only that the allegation of presentation of forged documents fell under the provisions of sections 363 and 366 of the Penal Code, presentation of forged documents as genuine was also an offence of uttering, and a criminal offence under section 115(i) (k) of the Electoral Act, 2002; He submitted that the standard of proof is beyond reasonable doubt, under section 138 of the Evidence Act. Mr. Okupe for the 3rd – 12th respondents, in his brief also submitted along the same line with the counsel for the 1st and 2nd respondents.
There is no doubt or dispute that an allegation of presentation of forged document within the con of the Penal Code is a criminal offence and authorities abound that the standard of proof required is beyond reasonable doubt under section 138 of the Evidence Act, Cap. 112 of the Laws of the Federation, 1990. In other words, the phrase “presentation of forged certificate” or document when used within the con of the combined provisions of sections 363 and 366 of the Penal Code is clearly a criminal offence and the standard of proof is beyond reasonable doubt as required by section 138 of the Evidence Act.
The issue in contention is the purport of the same allegation namely, “presentation of forged certificate” within the con of the provisions of section 182(i) (j) of the 1999 Constitution. For ease of reference, section 182(i) (j) of the 1999 Constitution provides as follows:
“182(i) No person shall be qualified for election to the office of Governor of a state if:
(a) …
(b) …
(j) he has presented a forged certificate to the Independent National Electoral Commission.”
A sober and critical reflection on section 182 of the 1999 Constitution aforesaid seems to show that the phrase “has presented a forged certificate” within the con of section 182 is an act on the part of the presenter, with concomitant feature of disgraceful antecedent that renders the presenter an unfit and improper person for the office of Governor of a State. It is not the requirement under section 182(1) (j) of the Constitution of the Federal Republic of Nigeria, 1999 that the person who presented forged certificate must have been charged to court, prosecuted and convicted or that the ingredients or elements required to prove a charge under section 366 of the penal code be established, for section 182(1) (j) to apply. It is only under section 182(1) (d) and (e) that prosecution and conviction will constitute a disqualification. In my view the purpose and object of section 182(1) (j) of the 1999 Constitution is to preclude and prevent persons with questionable integrity and shady antecedents, though not criminally damnified, from aspiring to the office of Governor of a State. In that regard, I think the issue of proving the ingredients and/or elements of fraudulent and dishonest intent associated with a charge of “presentation or uttering of forged” document under the penal code is not sacrosanct within the con of section 182 (1) (j) of 1999 Constitution.
However, the learned senior counsel, Chief Awomolo, clearly conceded in his brief, that the petitioners/appellants having alleged that the 1st respondent presented forged certificate to Independent National Electoral Commission, the petitioners/appellants must prove that the certificate presented to INEC was forged and that it was presented by the 1st respondent. A question then arises. What is the standard of proof required to show that the alleged certificate is forged. On this, I venture to say, that the standard is beyond reasonable doubt.
As indicated earlier, that petitioners/appellants in their bid to prove that the Diploma and Certificate, exhibits C and C1 presented by the 1st respondent to Independent National Electoral Commission (INEC) were forged called four (4) witnesses. The crux of the totality of the evidence led by the petitioners/appellants was to the effect that the Diploma and the Certificate presented to INEC by the 1st respondent were forged because, according to the appellants, the purported issuing authority of the Diploma and the certificate did not exist. The learned counsel for the appellants submitted that the maker of the Diploma and the Certificate exhibits C and C1 was a mere fiction, and therefore the documents were forged.
The 1st and 2nd respondents also called only one witness, Mr. Goatman, who with the leave of the tribunal, gave evidence on affidavit. Paragraphs 1,2,6,7,8,9,10,11,12,13,14 and 15 of the affidavit of the said Mr. Goatman are very relevant. See pages 153 and 154 of the record of appeal. For ease of reference, I think it is necessary to reproduce some paragraphs of the affidavit of Mr. Goatman for the 1st respondent. The affidavit reads inter alia as follows:
“1. That I am ordinarily resident in the above address but came into Nigeria on 7th December, 2003, at the invitation of the 1st respondent, Ali Modu Sheriff who was by student in England between 1981 and 1982.
2. That the purpose of my invitation was to come and give evidence in this matter now pending before this Election Tribunal.
5. That when I was coming to Nigeria I only prepared for ten days stay but at the tribunal sitting of 13th December, 2003, this case was adjourned to 23rd December, 2003 outside the period of my preparation by which time I should be in Cyprus where I already have pre-arranged commitments.
6. That when the 1st respondent saw me in Cyprus on the 26th November, 2003, he showed me and I read the petition filed in this case.
7. That upon my reading of the petition I discovered that the petitioners are questioning the certificate and Diploma issued to the 1st respondent by the Centre of Economics and Political Studies in 1982 in England.
8. That I know as a fact that sometime in March, 1964, a company by name Quentbridge Schools Limited was incorporated with its registered office in England and with No. 797417.
9. That I also know as a fact that that an extra-ordinary general meeting of the said company held on 28th September, 1965, the name of the School was changed to Study Units Limited.
10. That I also know as a fact that at another extraordinary meeting of Study Units Limited held on 14th August, 1969, the name of the School was further changed to International Education Centres Limited.
11. That I also know as a fact that I joined the Study Units Limited in 1967 and I was there when the Name was changed to International Education Centres Limited in 1967 and I remained there till late 1982, and that the registered’ office of the center at all times relevant was at 59 Queens Gardens, London W.2.
(12) That I know as a fact that part of the two objects of the company was the establishment of schools and Colleges and it was in furtherance of this that the company established the Centre of Economics and Political Studies which was an Examination Center for University of London GCE, the Institute of Marketing and the Institute of Export.
(13) That I know as a fact that about 1978 I became a Director of the Centre with full authority to admit Students and sign their certificates on completion of their studies.
(14) That I know as a fact that between July 1981 and June 1982, Ali Modu Sheriff, the 1st respondent was my student at the centre and he attended the school at about the same time with some other Nigerians like:
(1) Ali Kawu Lawan;
(2) Mohammed Sanusi Liman;
(3) Abba Jato; and
(4) Mohammed Nur Sheriff.
(15) That I know as a fact that Ali Modu Sheriff successfully completed his studies having fulfilled all the requirements prescribed for the award of Diploma and Certificate of the Centre and was awarded Diploma in Business Studies with English on 27th April, 1982 and Certificate in Export, Shipping, Trade and Transport on 1st July, 1982 and these two certificates were personally signed and authenticated by me as the Director of the Centre.”
PW1 gave evidence with respect to the list of accredited Universities and Colleges in United Kingdom, and said that the institution that issued exhibits C and C1 i.e. the Diploma and Certificate in question, did not exist, as a recognized Institution. He however at page 360 of the record of appeal, conceded or admitted under cross-examination that Quentbridge Schools Limited; Study Units Limited and International Education Centre Limited exist in England. From the affidavit of Mr. Goatman (supra) the deponent explained that it was the same Company, namely, Quentbridge Schools Limited that had its name changed in 1965 and 1969 to Study Units Limited and International Education Centre Limited respectively and eventually became International Education Centre Limited. He also explained that part of the two objects of the Company was the establishment of Schools and Colleges and that it was in furtherance of the said object that the company. i.e. International Education Centre Limited established Centre of Economics and Political Studies, and that he, the deponent was appointed the Director of the Centre with full power to admit students and to sign their certificates on completion of their studies. The deponent stated that the 1st respondent successfully completed his studies having fulfilled all the requirements and he was awarded a Diploma and a certificate by the centre. He identified exhibits C and C1 and stated that the two documents were signed by him in his capacity as the Director of the centre.
The deponent, Mr. Goatman attached to the affidavit as exhibit, the Memorandum of Association of the Company i.e. Quentbridge Schools Limited. See page 157 of the record of appeal. Paragraph 3 (a) (1) of the Memorandum of Association of the said Company, i.e. Quentbridge Schools Limited, shows the objects of the Company which objects include the establishment of Colleges for training of people in different aspects of education including economics, commerce, journalism etc. See page 157 of the record of appeal. According to Mr. Goatman, it was in furtherance of the objects of the Company that Centre of Economics and Political Studies was established.
PW2 who gave evidence on evaluation and accreditation of certificates stated under cross-examination at page 382 of the record of appeal that in the reply to his letter to the British council about the accreditation status of the Institution that issued exhibits C and C1, he was told that some old Schools have been closed, while new ones have been opened and that there might be omissions.
Similarly, PW4, who was specifically briefed to investigate the facts contained in the affidavit of Mr. Goatman, admitted in his evidence that he heard of the existence of Quentbridge Schools Limited; Study Units Limited and International Education Centre Limited and that Mr. Lan Goatman was the Chairman of the company around 28th of September, 1965. He also admitted that Centre of Economics and Political Studies was established by the International Education Centres Limited.
As indicated earlier, the learned senior counsel Chief Awomolo in his brief, rightly in my view conceded that in proving the petitioners/appellants case, the petitioners/appellants must prove that the Diploma and certificate in question, exhibits C and C1 are forged. In that regard, when the totality of the evidence led by the petitioners/appellants including their affidavit evidence proffered in response to that by Mr. Lan Goatman is considered along with the lone affidavit evidence of Mr. Lan Goatman for the 1st respondent, it is my view that the appellants did not prove their case, even on the preponderance of evidence, let alone, beyond reasonable doubt required in this case that the 1st respondent presented forged certificate. In that connection, I have no doubt in my mind that the learned Judges of the tribunal correctly determined the issue of allegation of forged certificates. Accordingly, I am of the view that the’ allegation of disqualification of the 1st respondent under section 182(1) (j) of the 1999 Constitution was not proved by the appellants.
On the question of non-qualification, the petitioners/appellants in paragraphs 15 and 16 of the petition alleged that the 2nd respondent was not qualified to run for the office of the Deputy Governor as he was at the said time and up till now under a legal/constitutional incapacity which prevents him from contesting for and holding the office of Governor and/or Deputy Governor of a State respectively.
The petitioners/appellants specifically claimed in paragraph 16(ii) of the petition as follows:
“The 2nd respondent does not have the minimum educational qualification prescribed by the Constitution of Nigeria, 1999, to enable him contest for or hold the office of Deputy Governor. The 2nd respondent did not supply any or, adequate information and record of his credentials to the 3rd respondent to enable a proper verification to take place.”
In answer to the above allegations, the 2nd respondent in paragraph 3(iii) of the reply stated that the 2nd respondent possessed the minimum educational requirement to qualify him as a Deputy Governor to the 1st respondent in that he, the 2nd respondent possessed First School Leaving Certificate and Teachers College Certificate both of which would be tendered at the hearing of the petition.
Furthermore, the 3rd respondent (INEC) also answered the allegation against the 2nd respondent as follows:
“The respondents deny the averments in paragraphs 15(i), (ii), (iii) and 16(i), (ii), (iii) and (iv) and by way of reply aver that the 1st and 2nd respondents satisfied all its requirement as candidates before they were cleared for the election.”
From the above, the parties had clearly joined issues on non-qualification of the 2nd respondent. The law is well settled that he who alleges must prove. Specifically, issue has been joined on whether or not the 2nd respondent possessed the minimum educational qualification of Grade II Teacher’s Certificate which he claimed and which qualified him to contest as the Deputy Governorship candidate.
In proof of the allegation, the petitioners/appellants specifically called Alhaji Ibrahim Gubio as PW3 to give evidence. He gave evidence to the effect that the 2nd respondent claimed to have attended Borno Teachers College Maiduguri, whereas, according to the PW3 there was nothing to show that he completed that College. He said that the 2nd respondent did not possess Grade II Teachers Certificate. He stated that the 2nd respondent’s surname is Dibal, and he, the witness discovered after the April, 19th 2003 election that the 2nd respondent did not possess Grade II Teacher’s Certificate. The 3rd respondent was served with a ‘subpoena duces tecum’ to produce and tender the Grade II Teachers certificate. From the record of proceedings of the tribunal on the 6th of January, 2003 at page 388 of the record of appeal, counsel on both sides seemed to have agreed that in response to the ‘subpoena duces tecum’ served on the 3rd respondent, to produce and tender Grade II Teacher’s Certificate submitted by the 2nd respondent to INEC, what was submitted by the 2nd respondent and produced at the tribunal by INEC was statement of result of Grade II Teacher’s Certificate and not the Certificate itself. That fact seemed to have been agreed upon by counsel for the parties that the 2nd respondent had a statement of result of Teachers Grade II Certificate. The case was adjourned on that day to enable INEC procedure Certified True Copy of the Teacher’s Grade II statement of result submitted by the 2nd respondent to INEC.
Furthermore, apart from exhibit J, the petitioners/appellants under cross-examination of DW1, tendered exhibits M and G which are the Primary Leaving School Certificate and Borno Teacher’s Grade II Certificate statement of results of the 2nd respondent.
The allegation by the petitioners/appellants was that the 2nd respondent did not have the minimum educational qualification prescribed by the Constitution of the Federal Republic of Nigeria, 1999 to enable him contest for or hold the office of Deputy Governor of a State.
The question that quickly comes to mind is; what is the minimum educational qualification prescribed by the 1999 Constitution to enable a candidate contest for or hold the office of Deputy Governor of a State?
Section 177 of the Constitution of the Federal Republic of Nigeria, 1999 provides as follows:
“177. A person shall be qualified for election to the office of Governor of a State if: –
(a) he is citizen of Nigeria by birth.
(b) …
(c) …
(d) he has been educated up to at least school certificate level or its equivalent.”
The minimum educational qualification prescribed by the Constitution of 1999 for election to the office of Governor and/or Deputy Governor of a State is education up to School Certificate level or its equivalent and authorities abound that the candidate may not necessarily pass the School Certificate, all that is compulsory is that he must have been educated up to School Certificate level. See Chukwu v. Icheonwo (1999) 4 NWLR (Pt. 600) 587 at 596.
What is an equivalent of a School Certificate is defined by section 318 of the 1999 Constitution as follows:
“School Certificate or its equivalent means –
(a) A Secondary School Certificate or its equivalent or Grade II Teacher’s 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 and
(i) service in the public or private sector in the Federation in any capacity acceptable to the Independent National Electoral 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 totalling 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;
(d) and any other qualification acceptable by the Independent National Electoral Commission.”
Before the learned tribunal, there was evidence given by the DWI and in particular exhibits J, M and G. Exhibits M and G were tendered by the petitioners/appellants through DW1 under cross-examination. Exhibits M and G are the Primary Leaving Certificate and Borno Teacher’s College Grade II Certificate Statement of Results of the 2nd respondent. Under the combined provisions of sections 177(d) and 318 of the Constitution of 1999, education up to Teachers Grade II Certificate level is an equivalent of education up to Secondary School Certificate level. It follows therefore that a statement of result of Grade II Teacher’s Certificate is an evidence of education up to Grade II Teacher’s Certificate level, an equivalent of education up to a Secondary School Certificate level. In that regard, it seems to me, that the findings of the tribunal wherein it stated “that the statement of result showing that the 2nd respondent sat for the Grade II Teacher’s Certificate, the 2nd respondent has the required educational qualification to contest the election into the office of Deputy Governor of Borno State”, cannot be faulted. A statement of result of an examination is an eloquent evidence of an attempt at the particular examination concerned and it is also a good evidence that he has been educated to that level. The issue of whether he passed or he did not pass the examination is a different issue that is not relevant under the provision of section 177 (d) of the Constitution of the Federal Republic of Nigeria, 1999. On the totality of the evidence before the learned tribunal, I am convinced that the petitioners/appellants did not prove the allegations of disqualification and non-qualification against the 1st and 2nd respondents. For these reasons and the fuller reasons given by my learned brother, Ogbuagu, JCA, in the lead judgment, I too hold that there is no merit in the appeal and should be dismissed. I therefore dismiss the appeal and abide by the order as to costs contained in the lead judgment.

SANUSI, J.C.A.: My learned brother, Ogbuagu, JCA who has just delivered his judgment, made it available to me before now. Having read it, I find his reasoning and conclusions agreeable to me. I however, by way of emphasis, comment on some of the salient points raised in the appeal.
In his brief of argument, the learned counsel for the 1st and 2nd respondents raised preliminary objection challenging the competence of all the grounds of appeal. His complaints are as follows:
(a) That grounds 1,3,5, 11, 13, 14 and 16 contained in the notice of appeal dated 12/3/2004 are all argumentative.
(b) That grounds of appeal Nos. 1, 8, 9, 12 and 13 are general in terms and evasive.
(c) That the particulars of sub-joined to grounds Nos. 2, 6, 9, 15 and 16 are not supportable of the grounds and many of the particulars are distinct complaints.
(d) That grounds 7,8,10 and 12 have no particulars, thereby making the grounds evasive and inchoate.
The learned counsel for the 1st and 2nd respondents Y. Ali, Esq. SAN argued that all the grounds do not conform with the provisions of Order 3 rules 2(2), (3) and (4) of Court of Appeal Rules, 2002. He submitted that the inconformity with the rules of this court renders them incompetent and therefore liable to be struck out. On such submission he cited and relied on the cases of Amudu v. Adelodun (1994) 8 NWLR (Pt. 360) 23 at 31; ASR Co. Ltd. v. O. O. Biosah (1997) 11 NWLR (Pt.527) 145.
The learned silk further argued that grounds that are vague and general in term are incompetent and should also be struck out. He cited in aid the decision of Oge v. Ede (1995) 3 NWLR (Pt. 385) 564 at 577 and 584. He finally urged this court to strike out all the grounds for the defaults he mentioned (supra).
In his reply to the argument posed in the preliminary objection on the competence of the grounds of appeal contained in his notice of appeal, Chief Awomolo SAN, of learned counsel for the appellants, submitted that the grounds of appeal are competent and they duly complied with the provisions of Order 3 rules 2(2), (3) and (4) of the Rules of this court (supra). On complaint of vagueness of the grounds of appeal, he cited and relied on the case of CBN & Anor. v. Okojie & Ors. (2002) 8 NWLR (Pt. 768) 48. He also submitted that all the grounds relate to the findings and conclusions of the tribunal which were quoted extensively and the particulars of errors were clearly set out and none of them is vague or argumentative. In further submission with regards to grounds 1, 3, 5, 11, 13, 14 and 16, he stated that they relate to the findings and conclusion of the tribunal while the particulars merely explained and elaborated the complaints in the said grounds. As regards grounds 7, 8, 10 and 12, the learned silk submitted that the particulars are fused in them. He cited among others, the cases of Peter v. Arch. Okoye & Anor. (2002) 3 NWLR (Pt. 755) 529; Chief Nsirim v. Nsirim (1990) 3 NWLR (Pt. 138) 285 at 297; Atuyeye & Ors. v. Ashamu (1987) 1 NWLR (Pt. 49) 267 at 282.
My Lords, permit me to start by saying that for a ground of appeal to be competent and relevant in any appeal it must portray the complaints of the appellant from the decision of the court complained against as could be discernible from the ratio decidendi of the case. See Saude v. Abdullahi (1989) 4 NWLR (Pt. 116) 387 and Ede v. Omeke (1992) 5 NWLR (Pt. 242) 428. I have closely looked at grounds 7, 8, 10, 12 and 13 which the objection or stated had no particulars. Admittedly, grounds of appeal which do not contain particulars of error of law or misdirection are defective. The particulars of the error in fact must not only be stated but must be seen to have been clearly stated since they constitute the specific reasoning or findings observation made by the court below that led to the institution of the appeal in the appeal court. They must therefore be easily discernible. See Metal Construction (WA.) Ltd. v. Miglore (1990) 1 NWLR (Pt. 126) 299; Ifediorah v. Ume (1988) 2 NWLR (Pt. 74) 5; Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) 718, (1987) 12 SC 14. Having said so however, let me quickly add that the discernibility of the particulars of error does not strictly mean that the particularisation must be on separate paragraph or sub-paragraphs. It has now become an accepted principle of practice of law that once the particulars of the error of law can be identified from the totality of the words used in such grounds of appeal that will suffice and such ground is valid in law and it can be properly described as ground of law. See Ogbechie v. Onochie (1986) 2 NWLR (Pt. 23) 484. A careful scrutiny of these grounds leaves me in no doubt that they satisfy this test and are therefore valid and competent grounds. The said grounds are in strict sense also not vague. In the case of CBN v. Okojie & Ors. (supra), vagueness of a grounds of appeal arises where it is couched in a manner which fails to provide explicit standard for its being understood or where what is stated is so uncertain that it is not susceptible of being understood. Vagueness may also arise when the complaint is not defined in relation to the subject or when the particulars supplied are irrelevant. None of these defect are discernible from these grounds as complained by the objection or. I am of the view that they are valid and competent grounds of appeal. Again, I notice that the 1st and 2nd respondents’ counsel did not care to call for more particulars. This, he could have done, but he failed to do so. I also do not agree with the two respondents’ learned counsel that grounds 1,3,5, 11, 13, 14 and 16 in the notice of appeal dated 12/3/2004 are argumentative and incompetent. I also accordingly reject his submission that grounds 1,8,9, 12 and 13 are general in terms and evasive or that they are in any way not in conformity with Order 3 rules 2(2), (3) and (4) of this court’s rules. The said grounds are based on the judgment of the tribunal appealed against and they all were aimed at challenging the ratio of the decision of the election tribunal. To me, they are all valid and competent grounds of appeal. See Azaatse v. Zegeoer (1994) 5 NWLR (Pt. 342) 76. They are not vague nor are they general in term as contended by Mr. Yusuf Ali, SAN in his submission. In the light of all that I said above I am unable to see any merit in the preliminary objection. It is not well taken and I too over rule same.
Coming to the appeal proper, a careful study of the briefs filed by the parties (especially the 1st appellant) there is no gain saying that the main issues on which the petition was fought at the tribunal were basically on issues of disqualification and/or non-qualification of the 1st and 2nd respondents. The facts have been ably and painstaking summarized by my learned brother in the lead judgment. It will therefore be super flows for me to repeat them again. I accordingly adopt them. Similarly, the issues for determination of the appeal were also set out in the lead judgment and they need not be repeated here too. I however intend to comment by way of elaboration and emphasis, on some of the salient issues raised by the parties in their arguments in the briefs.
The first issue for determination relates to whether the Election Tribunal had correctly determined the issue of presentation of forged certificate by the 1st respondent. In dealing with this issue, I deem it apposite to reproduce the main complaints in the petition before the tribunal, the decision of which led to the institution of this appeal. The pith of the complaint of the petitioner was anchored on paragraph 16 of the petitioner’s petition wherein the latter averred as below:-
“Your petitioners state that some of the facts on which they shall be relying upon in support of the grounds for challenging the election stated in paragraphs 11, 12 and 13 above are as follows:
(i) The 1st respondent submitted forged certificates to the Independent National Electoral Commission and the State Security Service.
Particulars of the said certificates are:
(a) A Diploma in Business Studies with English, dated 27th April, 1982 and purportedly issued by a Centre of Economic and Political Studies in association with the Business Language School, London.
(b) A Certificate in Export, Shipping Trade and Transport dated 1st July, 1982 also purportedly issued by the same Centre of Economic and Political Studies, London.”
(Italics or emphasis mine).
Sequel to the serious allegation made against them, the respondents (i.e. 1st and 2nd) joined issues with the petitioners and in paragraph 3 of their joint reply pleaded as below:
Paragraph 3
“The respondents deny the averments contained in paragraph 16 of the petition and states as follows:
(i) The 1st respondent (sic) never submitted forged Certificates to the Independent National Electoral Commission and the State Security Services as all the Certificates submitted to the above named bodies are genuine as particularized in paragraph 16(i) (a) and (b) of the petition.
(ii) Furthermore, the 1st respondent has a First School Leaving Certificate (i) a Diploma in Business Studies in English from Centre of Economic and Political Studies, London in 1981 – 1982 and (ii) Diploma in Business Studies, English from Centre of Economic and Political Studies, London issued on 27th April, 1982. The said Certificates were accepted by the 3rd and 4th respondents and in compliance with the 1999 Constitution and the Electoral Act, 2002”.
(Italics mine).
It is my considered view that the operative words or the catch phrase of the averments in the petition are “submitted forged Certificate to the Independent National Electoral Commission. To accuse somebody of submitting a forged certificate is, to my mind tantamount to accusing him of committing a criminal offence from whatever angle one looks at it. For instance, section 366 of the Penal Code which is applicable to the Northern part of this country in which Borno State is situate and where the 1st and 2nd respondents are, it is an offence to use as genuine any document which he knew or has reason to believe to be a forged one. The provisions read as follows:
Section 366 of Penal Codes
“Whoever fraudulently or dishonestly used as genuine any document which he or has reason to believe to be a forged document shall be punished in the same manner as if he had forged such document.”
Now, a literal interpretation of the provisions quoted above is that the petitioners are accusing the 1st respondent of presenting a forged certificate as genuine so that the INEC i.e. 3rd respondent would believe he was qualified to contest the Governorship election in Borno, State and also for it (INEC) to clear him for the contest. Such allegation is no doubt an offence under section 368 of the same Penal Code.
It is my considered view that the allegation leveled in paragraph 16 of the petition smacks of commission of a criminal offence and which, the accuser has the burden of proving beyond reasonable doubt. See Omoboriowo v. Ajasin (1984) 1 SCNLR 108; Ezike v. Ezeugwu (1992) 4 NWLR (Pt. 236) 462; Ofodile v. Chinwuba (1993) 1NWLR (Pt. 268) 151; Eseduwo v. INEC (1999) 3 NWLR (Pt. 594) 215; fang v. Dariye (2003) 15NWLR (Pt. 843) 436 at 461. The law always places burden of proof in an election petition on the petitioner and the standard of proof is generally on balance of probabilities but where allegation as made against a respondent or respondents is one of committing an offence or offences as in this case instant case, the standard of proof is raised to proof beyond reasonable doubt. The question now is can it be said that the petitioners have proved their allegation of committing an offence of submitting forged certificates beyond reasonable doubt as required of them by law? I do not think so. All the witnesses who were called to testify by the petitioners at the tribunal failed woefully to prove that the Diploma and Certificates submitted by the 1st respondent to INEC or State Security Service were forged ones. Mr. Goatman, who was called by the 1st respondent testified in his affidavit evidence as to the genuineness of the certificates. His evidence has not been debunked by the averments in the counter-affidavit. It is trite law that where facts deposed to are neither controverted nor contradicted by counter-affidavit, they are good and credible evidence and must be relied on by court as they are deemed to be admitted. See New Nigerian Bank Plc. v. Denclag (2001) 1 NWLR (Pt. 695) 542. It is also well settled law that where an alleged crime has not been proved beyond reasonable doubt, any and all possible doubts must be resolved in favour of the person accused of committing such crime. See Kalu v. State (1988) 4 NWLR (Pt. 90) 503; Okonji v. State (1987) 1NWLR (Pt. 52) 659 at 670. From all that I said on this question posed in issue one of the appellant’s brief of argument is answered in the affirmative. It is therefore accordingly resolved against the appellants.
The next issue that attracts my attention for amplification by me is the third issue proposed by the appellants. It has to do with whether the 1st respondent at the time of contesting the gubernatorial election has possessed the minimum educational qualification required by law. This issue perhaps relates to the issue of non-qualification as I mentioned in the fore paragraphs of this contributory judgment. The first issue appears to me to relate to disqualification by virtue of allegation of presentation of forged document (Certificates) as per paragraph 16 of the petition. But in this issue, the appellants are now shifting to another different premise to allege that the 1st respondent did not obtain the requisite qualification to contest as Governorship candidate at the election on the ground that he failed to possess minimum qualification i.e. of School Certificate or its equivalent.
On the issue of minimum qualification, that a candidate for gubernatorial election must possess, the Constitution of the Federal Republic of Nigeria has made provision on it under its section 177. The section reads thus:
Section 177
“A person shall be qualified for election to the office of Governor of a State if:
(a) not relevant
(b) not relevant
(c) not relevant
(d) not relevant
(e) he has been educated up to at least School Certificate Level or its equivalent.”
Also the Constitution of Federal Republic of Nigeria, 1999 by its section defined “School Certificate or its equivalent to mean any of the followings:
(a) a Secondary School Certificate or its equivalent, or Grade II Teacher’s Certificate, the City and Guild Certificate.
(b) Education up to Secondary School Level, or
(c) Primary Six School Leaving Certificate or its equivalent; and
(i) service on the public or private sector in the Federation in any capacity acceptable to the Independent National Electoral Commission for minimum of ten years; and
(ii) attendance at courses and training in such Institution 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 Independent National Electoral Commission; and
(d) any other qualification acceptable by the Independent National Electoral Commission.
From the foregoing provisions it is clear and undisputable that the minimum qualification for a contestant of Governorship office is education up to at least School Certificate Level or its equivalent. It is not the requirement of the Constitution or the Electoral Act, 2002 that a candidate for election into the office of a Governorship of a State must obtain a Certificate. It suffice to say that once evidence is led to show that he at least obtained School Leaving Certificate even without passing such examination, or its equivalent then the candidate is qualified to contest. See section 318(1)(c), (i) to (iii) of the Constitution. And even in cases under section 318(i), (ii), (iii) (supra) and sub-paragraph (d), INEC has the unfettered power to accept any other qualification. The INEC has however no such discretion in category (a) (supra) i.e. Secondary School Certificate or its equivalent or Grade II Teacher’s Certificate or the City of Guild Certificate. It is worthy of note that DW1 a staff of the 3rd respondent in his testimony had this to say.
“After the display of the personal particulars as submitted by the political parties, the 3rd respondent through its screening committee of which I was a member to (sic) verify the claims of the candidates which we did. Based on the committee’s recommendation that the 1st and 2nd petitioners as well as 1st and 2nd respondents qualified for the office of Governor of Borno State, they were cleared to contest the said election.”
This piece of evidence quoted above was not contradicted, controverted or challenged. In that respect, being an unchallenged and undiscredited evidence, the tribunal is bound to accept it as credible and to subsequently act on it or use it. The tribunal was therefore right when it found that the 1st respondent possessed the minimum educational qualification to contest the said election. I accordingly endorse such finding by the tribunal in that regard. I therefore also resolve this issue against the appellants and dismiss the appeal on it.
Now on the final note, I will deal with the 4th issue for determination as formulated by the appellants’ counsel. This (4th) issue has to do with the qualification of the 2nd respondent. In it, the appellants query whether the tribunal was correct when it held that the 2nd respondent possessed Teacher’s Grade II Certificate with which he was cleared to contest the election as running-mate to the 1st respondent. In paragraphs 15 and 16 of the petitioner’s petition it was alleged that the, 2nd respondent was not qualified to contest the election along with the 1st respondent, principally because according to the appellants’ counsel, the 2nd respondent did not possess the minimum educational qualification as required by the 1999 Constitution arid also that he did not supply to the 3rd respondent adequate information required by the Constitution to enable the 3rd respondent verify. In the 2nd respondent’s reply the averments of the petitioners/appellants were debunked (see paragraph 3(iii) of the reply). Similarly, the 3rd respondent i.e. INEC also denied such petitioners’ averment and categorically stated that both 1st and 2nd respondents satisfied them before they were cleared. Issues were at that stage joined. To prove their assertion on this, the petitioners/appellants called PW3 one Alhaji Ibrahim Gubio their party Chairman. Part of his testimony is:
“In the case of the 2nd respondent he claimed he went to Borno Teacher’s College, Maiduguri and he could not produce certificate to testify his claim and there is no evidence that he finished that school.”
It is worthy of note that the witness was not shown to have ever been a Teacher and/or Principal of the Borno Teachers College where the 2nd respondent claimed he attended. It was also not shown that he was a staff of Ministry of education, Borno State even though he claimed to have been a one time Commissioner of Education in Borno State. It was also, not shown by the petitioners that this witness used to keep records of students who attended that College. One wonders why the petitioners chose to call him to give evidence. As Chairman of PDP which is an interested party and an adversary one in the petition his evidence ought to have been received with great caution being evidence of an interested party. In any case, I do not think he is a proper person to be called to give a proper account of the educational biography of the 2nd respondent in the present surrounding circumstance. Perhaps the most suitable and appropriate person to be called to testify in the circumstance would have been the Principal of the College the 2nd respondent claimed to have attended who might be a custodian of records of students, who passed through his College or even any teaching staff who served in the school during the period the 2nd respondent claimed he was a student of that College.
Again it is submitted by the learned silk on behalf of the appellants that a statement of result was even produced. The learned senior counsel for the appellant kept on hammering on the failure of the 2nd respondent’s counsel to produce Teacher’s Grade II Certificate. I have stated earlier and I will repeat it once again that, the law (Constitution) nowhere insisted that a candidate for contest of Governorship election must show or produce a Certificate that he passed the exam (Grade II). It is sufficient if he produces evidence of attendance of such course or School Leaving Certificate. That has been a settled law long ago. There are plethora of cases on that one of them is Chukwu v. Icheonwo & 6 ors. (1999) 4 NWLR (Pt. 600) 587.
I must say that I am a bit d1sturbed to note from the brief of argument filed by the appellants and even when he orally arguing the appeal, the learned Senior Advocate of Nigeria Chief Awolomo (SAN) was agitating that the 2nd respondent failed to produce his Grade II Certificate as if the 2nd respondent has the burden to prove that he had or possessed the Grade II Certificate. It seems, with due respect to the learned silk, as if he had forgotten the time honoured principle of law that “he who asserts must prove.” In a situation of this nature even though the 2nd respondent asserted in paragraph 3(iii) (a) of their reply that the 2nd respondent was qualified to contest the election and that he possessed 1st School Leaving Certificate and Teachers College Certificate which were to be tendered that still does not make the burden of proof to shift to them (or him). Even at the expense of being repetitive, I still emphasise that “he who asserts has the burden of proof on him.”
It is my view therefore, that the tribunal was right when it held that the petitioner failed to prove that the 2nd respondent did not possess the minimum educational qualification to contest as running mate of the 1st respondent. I equally so hold.
In summation, I wish to commend His Lordship, Ogbuagu, JCA, my learned brother, for the well-researched judgment which as usual of him is thorough and had treated all the salient issues canvassed by the parties in the appeal. I entirely agree with his reasoning and conclusion that the appeal is devoid of any merit. It therefore deserves to be dismissed. I too have no hesitation in dismissing it. I affirm the decision of the tribunal. I award cost of N10,000.00 against the appellants in favour of the 1st and 2nd respondents.

NZEAKO, J.C.A.: I agree entirely with the conclusions in the leading judgment of my learned brother, Ogbuagu, JCA.
I will add some words of my own, first and foremost on the resolution of the preliminary objection raised by learned counsel for the 1st and 2nd respondents, Y.O. Ali SAN, and secondly on the merits of the appeal, all of which I have deeply considered.
The objection is to the effect that various grounds of appeal set on below are incompetent and liable to be struck out. Grounds 1,3,5, 11, 13, 14 and 16 of the grounds of appeal are said to be argumentative, grounds 1, 8,9, 12 and 13 said to be general in terms and evasive, the particulars in grounds 2, 6, 9, 15 and 16 do not support their respective grounds of appeal, many of the particulars being distinct complaints and grounds 7, 8, 10 and 12 evasive and inchoate being without particulars.
All the grounds of appeal in this matter and the learned counsel for the parties’ arguments and submissions on the preliminary objection have been carefully outlined in the leading judgment. Suffice it to state in summary that the learned senior counsel for the appellant, Chief Awomolo, had in opposing the objection, submitted that none of the grounds of appeal was incompetent, rather, that all the grounds were in conformity with the rules of court in Order 3 rules 2(2), 2(3) and 2(4) of the Court of Appeal Rules.
Our courts have developed and applied principles arising from Order 3 rules 2(2),2(3) and 2(4). These Rules provide as follows:
“2(2) If the grounds of appeal allege misdirection or error in law, the particulars and nature of misdirection or error shall be clearly stated.
2(3) The notice of appeal shall set forth concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative…
2(4) No ground which is vague or general in terms or which discloses no reasonable ground of appeal shall be permitted, save the general ground that the judgment is against the weight of evidence and any ground of appeal or any part thereof which is not permitted under this rule may be struck out by the court of its own motion or on application by the respondent”.
There can be no doubt that a ground of appeal which is lucid in its terms, containing a statement of the findings of the lower court which convey the error or misdirection complained of by the appellant and the particulars of the error which correctly expatiate on the appellant’s complaint, cannot be said to be vague or argumentative.
Thus, regarding grounds 1, 3, 5, 11, 13, 14 and 16 which are daubed vague or argumentative, I see no vagueness in any of them.
I hold the view that they are all lucid, having regard to the nature of the error which each complains of. Nor is any of them argumentative. Each is simply a statement of the lower tribunal’s findings complained of. As to the particulars, they expatiate on the appellants’ complaint in a manner that expose the case being made. Let me set out as example one of the grounds together with its particulars, which the 1st respondent’s Senior Counsel sought to strike out for being vague and argumentative.
“Ground 1:
The learned trial Judges of the election tribunal erred in law when they held as follows:
‘There is therefore no doubt that the allegation against a party that he submitted forged certificate is a criminal allegation going by the definition of forgery in section 363 of the Penal Code and the punishment for using forged documents in section 366 of the same Code, so also the case of Ukpo v. Adede (2002) 3 NWLR (Pt. 755) 671. The allegation in paragraph 16(1) of the petitioners’ petition against the 1st respondent is a criminal allegation. Now what is the position of the law with regards to standard of proof required to discharge the burden in a criminal allegation? Section 138 of the Evidence Act”.
Particulars of error in law:
(a) Section 182(1) (f) of the Constitution of the Federal Republic of Nigeria, 1999 specially (sic) provides for a disqualification of a candidate who has presented a forged certificate” (not that he the candidate forged the certificate) as a ground for challenging an election.
(b) The Constitution does not impose any penal provision, it did not prescribed (sic) any sentence and the provision does not permit incorporation of specific provision of Penal Code by reference as ventured by the tribunal.
(c) All the elements of criminal offence under section 366 of the Penal Code are absent in section 182 of the Constitution and the election can not (sic) ascribe criminality by interpretative exercise.
(d) The standard of proof in all matters listed in section 182 of the Constitution is on the balance of probability since no crime is in issue.
Quite clearly, what ground 1 has done is to exhibit a statement of the lower court’s findings and particulars carefully elaborating on the error in law alleged committed. The other grounds 3,5, 11, 13, 14 and 16 grouped with it by the 1st respondent’s senior counsel possess the same sound character1stics as ground 1 (supra). I also see no evasiveness in grounds 2, 6, 9, 15 and 16. None of them is general in terms as alleged for the 1st and 2nd respondents. What has been stated above with respect to grounds 1,3,5, 11, 13, 14 and 16 apply to them. Taking ground 2 as example, this becomes evident.
Ground 2:
The learned Judges of the election tribunal erred in law when they held that the petitioners did not prove the allegation of presentation of forged certificate by the 1st respondent beyond reasonable doubt when there are uncontradicted facts which constitutes the ingredient of the allegation.
Particulars of error in law:
(a) Presence of uncontradicted evidence on the record was sufficient to prove the allegation as the standard required was not proof beyond every iota of doubt.
(b) Election tribunal being suis (sic)(it is sui) generis cannot (sic) rewrite the allegation against the 1st respondent.
This ground clearly set out what error the election tribunal is charged with committing, the particulars expatiating on it in clear language. The same must be said of grounds 6, 9, 15 and 16, regarding the error or misdirection which the appellants complain of. As to the allegation that many of the particulars in grounds 2, 6, 9,15 and 16 do not support their respective grounds of appeal, being distinct complaints there is no submission by Mr. Ali buttressing this. Ground 2 set out above bears no such vice. Nor do any of the other grounds.
A ground of appeal which alleges error in law or misdirection may be described as vague or in general terms contrary to Order 3 rule 2(2) and 2(4) of the Court of Appeal Rules if it fails to contain particulars and the nature of the errors complained of. A mere allegation of “error in law” or “error in law and on the facts”, is not in accordance with these rules. It is insufficient to satisfy the provision. After the allegation, the ground of appeal must also be fully set out what facts the appellant is alleging that the court ought to have found on/or what error in law the court below has made. The manner in which the error is committed should be stated too. See Okorie v. Udom (1960) SCNLR 326, (1960) FSC 162; National Investment properties Ltd. v. Thompson Organisation Ltd. (1969) 1 All NLR (Pt. 1) 138; Adeleke v. Asani (2002) 8 NWLR (Pt. 768) 26 at 42, 44.
It is however important to restate in alignment with the foregoing, the principle that it is not really in every case that particulars of error are separately stated.
For, although the rules of court require, and various legal authorities dictate, that particulars of error complained of in a ground of appeal should be clearly stated, it has become trite law also that where the particulars are inherent in and patent from the part of the judgment complained of and set out, further particulars need not be supplied. See Adeniji v. Disu (1958) SCNLR 408, (1958) 3 FSC 104.
A ground of appeal which within its  incorporates its particulars, need not have further particulars set out separately. See R. Lauwers Import-Exportv. Jozebson Exports (1988) 3 NWLR (Pt. 83) 429 at 442; Nsirim v. Nsirim (1990) 3 NWLR (Pt. 138) 285; Osawaru v. Ezeiruka (1978) 6-7 SC 135; Nta v.Anigbo (1972) 5 SC 156 at 164. It follows that an allegation attacking such a ground which has its particulars incorporated, fused or embedded therein and seeking to be struck out will not be upheld, the courts having held that such a ground is good and not in breach of the Rules. See also Atuyeye v. Ashamu (1987) 1 NWLR (Pt. 49) 267 at 282, per Oputa, JSC.
Quite clearly, what the appellant set out in each of these grounds of appeal, grounds 7, 8, 9, 10 and 12 is a statement of the court’s findings or pronouncements with the particulars which carefully elaborate on the error in law complained of. The grounds are obviously grounds of law. Although they do not convey particulars under a separate heading, the reasons for describing each of them as error in law are incorporated in each one.
Therefore the objection to grounds 7, 8, 10 and 12 by the 1st respondent ought to be overruled. For, their particulars are clearly incorporated and embedded in each of them.
An important element in a ground of appeal, which is well articulated, is that it is couched in a manner that it brings out the basis of the appellant’s complaint. See Globe Fishing Industries Ltd. v. Coker (1990) 7 NWLR (Pt. 162) 265 at 300.
In essence, an appellant must frame his grounds of appeal with such clarity as would enable the opposite party and indeed the court, to appreciate his complaint. So states Ejiwunmi, JSC in Adeleke v. Asam (supra) at p.43. We must be so guided.
There is no doubt that all the grounds of appeal complained of satisfy the foregoing requirements and the rules in Order 3 rules 2(2), 2(3) and 2(4) (supra). There is therefore no substance in the objection which is hereby over-ruled.
Before leaving the issue of preliminary objection, let me state that I am unable to overcome the urge to observe that the learned senior counsel for the 1st and 2nd respondents, by the manner he presented and argued the preliminary objection, without the usual vim with which he is want to deal with legal argument, created the impression that he was only “fishing in troubled waters”, not entirely convinced of his prospects for success.
Now, he has not succeeded.
I feel obliged to state also that I find it rather significant that inspite of the objections to virtually all the grounds of appeal, the learned Senior Advocate for the 1st and 2nd respondents proceeded to set up issues for determination from all the grounds of appeal which he argued with gusto. May it be assumed that the realisation that our courts have adopted the principles of playing down technicalities and in exchange facing the doing of substantial justice spored him on? Then, that spirit of pursuing the justice of the appeal prevailed.
This brings us to considering the merits of this appeal.
In this regard, I will only say a few words regarding some element in the evidence before the tribunal which have negatively impacted on the case of the appellants and of course positively on the respondents.
I have had a close perusal and consideration of the petition, the reply to the petition, the evidence before the lower tribunal, the judgment of the tribunal, the grounds of appeal and the issues distilled therefrom, together with the argument and submission of the learned counsel for the parties, leading their teams of lawyers. What to me particularly turns out to be central in the decision which this court must come to is the need for the petitioners/appellants to prove their allegation of non-qualification and forgery of certificate against the 1st respondent and non-qualification (alone) against the 2nd respondent.
For, by the time the matter got to this court on appeal, and was argued by the parties, it had become apparent that the complaint of the petitioners/appellants had been narrowed down to one ground of the 3 grounds of their petition set out in paragraph 15 thereof.
It is ground 15(1) which avers that:
“The 1st respondent and/or the 2nd respondent were not qualified to run for the office of Governor and Deputy Governor respectively at the time of the election as they were, at the said time and up till now, under a legal/constitutional incapacity which prevents them from contesting for and holding the office of Governor respectively”.
The facts relied on in support of the foregoing, pleaded in paragraph 16 of the petition are as set out in paragraph 16(i) – 16(ii), 16(iii) and 16(iv) as follows:
Paragraph 16(i)
“The 1st respondent submitted forged certificates to the Independent National Electoral Commission and the State Security Service. Particulars of the said certificates are:
(a) A Diploma in Business Studies with English, dated 27th April, 1982 and purportedly issued by a Centre of Economic and Political Studies in association with the Business Language School, London.
(b) A Certificate in Export, Shipping, Trade and Transport dated 1st July, 1982 also purportedly issued by the same Centre of Economic and Political Studies, London.
(ii) The 2nd respondent does not have the minimum educational qualification prescribed by the Constitution of Nigeria, 1999 to enable him contest for or hold the office of Deputy Governor. The petitioners shall rely on examination records of the relevant educational authorities at the trial of the petition.
(iii) The 2nd respondent did not supply any or adequate information and records of his credentials to the 3rd respondent to enable a proper verification take place.
(iv) The 2nd respondent did not submit himself for Security clearance by the State Security Service (SSS), not submit his credentials to the SSS as required by the rules and regulations of the election which other candidates complied with and in spite of this, the 4th respondent allowed them to participate in the election.
The petitioners’ prayer set in paragraph 20 of the petition is that it be determined that:
(i) The 1st and 2nd respondents were and are presently under a legal/constitutional incapacity which disqualified and continue to disqualify them from holding and thus seeking election into the office of Executive Governor and Deputy Governor of Borno State respectively.
(ii) The 1st and 2nd petitioners, being the candidates with the highest number of valid and lawful votes from among other constitutionally qualified candidates in the Borno State gubernatorial election held on 10th April, 2003 (having polled a total of 341,537 (three hundred and forty one thousand five hundred and thirty seven) are the winner in the said election and be declared and returned as such.
In the Alternative:
Your petitioners pray that it may be determined that:
(iii) The above-named 1st and 2nd respondents were not duly elected or returned by the majority of lawful votes cast at the election.
(iv) The entire Governorship election conducted in Borno State on 19th April, 2003 be nullified and the return of the 1st and 2nd respondents in respect therefore be so nullified and that fresh gubernatorial election be held in Borno State.
It is in respect of the foregoing, the parties made their submissions to this court in this appeal, notwithstanding all other grounds of the petition, allegations, complaints and facts pleaded by the petitioners and responded to in their reply by the respondents.
A study of the evidence adduced by the petitioners and the respondents at the trial in the lower tribunal confirm that for the parties, the central issue is as set out above, namely whether or not the 1st and 2nd respondents were or were not qualified to stand election as the Governor and Deputy Governor, having regard to the provisions of the 1999 Constitution of the Federal Republic of Nigeria.
Against the 1st respondent the specific allegation is as set out in paragraph 16(1)(a) and (b) (supra).
What affects the 2nd respondent is the allegation set out in paragraph 16(ii), (iii) and (iv) of the petition (supra).
Having made these allegations, it is important to see what evidence the petitioners/appellants led. For there is the well known principles in the law of Evidence that he who asserts must prove. The principles are expounded in section 135(1) of the Evidence Act, which enacts that –
“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist”.
I am appreciative of the review and consideration of the evidence led by the parties undertaken by my learned brother, Ogbuagu, JCA in his leading judgment. I adopt them and his conclusions as my own.
It is my respectful view that the evidence led by the appellants at the lower tribunal did not hit the mark. They failed to discharge the onus of proof which the law placed on them, which was to prove their case by preponderance of evidence and in the case of the allegation of presenting a forged certificate which is an allegation of crime, proof beyond reasonable doubt.
Permit me, My Lords to inquire why all the counsel for the petitioners/appellants including Mr. Akintola, SAN who personally conducted part of the case leading other counsel, stayed away from the tribunal on a crucial day, when their leading counsel Mr. Awomolo, SAN had to stay away from the court due to ill health. On that day, a crucial witness, Mr. Goatman who in my view had the key to resolving if the 1st respondent presented a forged certificate or not, was available at the tribunal. They missed the opportunity to hear him testify orally and to cross-examine him. I will return to this point later.
It is also worth enquiring why the appellants did not consider it worth their while and/or effort to initiate direct evidence from the proprietors of the Nigerian Schools and Institutions said to have been attended by the 1st and 2nd respondents whose certificates the appellants were challenging, and were therefore in serious issue. They would have openly confirmed or denied the attendance or otherwise of the respondents, and their certificates.
I see no explanation for the failure of the appellants to probe or prove these matters in so direct and straightforward a manner.
When a party to an action complains of failure by the trial court to accord it fair hearing, the court is bound to look at all the circumstances of the case. The appellants did complain of this.
I could not help observing from the records the yawning gap left in the case of the petitioners/appellants due to what looks like either lack of diligence or incapacity on their part to meet the onus of proof on them by bringing before the tribunal the measure and standard of evidence which the law required of them, and/or attacking the evidence of the opposite party by counter-evidence and/or cross-examination of their witnesses. Let me mention just a few instances First, (1) several “subpoenae ad testificandum” and notices to produce were issued by the petitioners/appellants to witnesses who would have produced certificates and other documents which would have established the issue of qualification of the 1st an 2nd respondents, so vital to the appellants’ case.
I see nothing in the records which prevented them from bringing these documents before the tribunal. The way it went, their claim against these respondents and the evidence which they contrived to produce, looked like a fishing expedition with a tendency to be unsuccessful.
Secondly (2), the petitioners/appellants on 13/12/2003 missed a golden opportunity of listening to and cross-examining Mr. Ian Goatman who from all appearances was one major key to the major ground of the petition now in issue. It is that ground relating to non-qualification of the 1st respondent and Mr. Goatman’s testimony earlier referred to. On the vital date being 13/12/2003, the leading counsel for the petitioners sought leave of the court by a letter to be absent on grounds of ill health. Not even one of the other legal practitioners ranging from 5-7 in number came to court. No explanation was proferred for their absence and not even Chief Akintola, SAN.
Then, in his letter the sick leading counsel had asked for an adjournment to 23/12/2003 – a period of 10 days. Yet this was an election petition of which time is of the essence. Mr. Ian Goatman had come from Cyprus to testify for the respondents in relation to the qualification evidenced by certificates issued by his Institution to the respondents and which the petitioners were challenging as being a forgery.
Inspite the dilemma which the action of the petitioner’s legal practitioners placed the tribunal and the respondents, they granted the appellants the indulgence of an adjournment, guided by the true traditions of the law under our Constitution and of the Bar – of giving the other party a chance to be heard.
But then, what of Mr. Goatman? Should he wait for 10 days in Maiduguri or return to Cyprus and come back when the petitioners were ready? The respondent applied, pursuant to Order 41 rule 2(1) of the Federal High Court (Civil Procedure) Rules, applicable to the election tribunal, to have his evidence taken on oath, rather than keep him in Maiduguri in these circumstances. The tribunal granted the application of the respondents, pages 152-171 of the record of proceedings contain the evidence on oath of Ian Wilfred Goatman sworn to at the High Court Registry, Maiduguri on the 15th of December, 2003 with 10 documentary exhibits thereto. Documents do speak, but they cannot be cross-examined!!!
In the absence of the legal practitioners for the petitioners/appellants, Ian Wilfred Goatman’s evidence speak volumes against the case which the petitioners must need to make by evidence, in order to succeed. He was not challenged by cross-examination or production of counter-documents. The appellants did not seek to recall him. Only a counter-affidavit was filed by the appellants, according to their subsequent application to the tribunal. A major question which arose for resolution was whether the 1st respondent presented a forged certificate to the Independent National Electoral Commission, INEC for the election. This was a particularly central issue to the petitioner’s case at the election tribunal. Chief Awomolo SAN, for the appellants stated this in his submission.
As rightly stated by Mr. Okupe, learned counsel for the 3rd 12th respondents there is a fundamental right of cross-examination available to the petitioners. It was not seized to challenge the evidence seeking to discredit or rebut their evidence of non-qualification vel non. If proved, the petition would succeed. Otherwise the allegation of the petitioners would simply sound and be described as nebulous and made without foundation.
The evidence of Mr. Goatman supports the answer to the question whether the 1st respondent presented a forged certificate, which is what was to be proved by the appellants. He swore that the 1st respondent was his student in 1981-1982. He produced sworn exhibits being certified true copies of the following documents:
(a) Certified True Copy of the Memorandum of Association of Quentbridge Schools Limited – exhibit 1.
(b) Certified True Copy of the Articles of Association of Quentbridge Schools Limited – exhibit 2.
(c) Certified True Copy of the Special Resolution of 28th September, 1965 – exhibit 3.
(d) Certified True Copy of the Special Resolution of 14th August, 1969 – exhibit 4.
(e) Certified True Copy of notice of change of Directors or Secretaries or in their particulars dated 10th September, 1979 – exhibit 5.
(f) Certified True Copy of situation of the Reg1sters of members and Debenture Holders – Exhibit 6.
(g) Certified True Copy of special resolution of 17th May, 1982 – exhibit 7.
(h) Certified True Copy of notice of dissolution of Company number 797417 of 26th November, 2003 – exhibit 8.
(i) Certified True Copy of Diploma in Business Studies with English Certificate issued to Ali Modu Sheriff – exhibit 9.
(j) Certified True Copy of Certificate in Export, Shipping Trade and Transport issued to Ali Modu Sheriff on 1st July, 1982 – exhibit 10.
His institution issued the 1st respondent’s Certificate.
The Honourable Judges of the tribunal held that the counter-affidavit of the appellants did not controvert the averments in the affidavit of Mr. Goatman. I agree with them.
In the whole, no credible evidence of the alleged forgery came from the appellants. Allegation of forgery or fraud made in a case must be followed by particulars – See Order 26 rules (5) and 6 of the Federal High Court Rules. A naked allegation of forgery without particulars and without proof is detrimental to any case a party who puts it in his pleadings seeks to make.
The evidence of PW3 and PW4 did not help the case of the appellant. PW4 was totally discredited, or, shall I say, he totally discredited himself, starting from swearing on oath that he was a “barrister and solicitor of the Supreme Court of England” when he was nothing of the sort and in any event there is no such professional title in England. For, there one is either a Barrister or a Solicitor but not both. The legal profession there is not fused as in this country. Yet this same witness had never qualified as any of these in England. Perjury is the offence which PW4 could have exposed himself to had anyone been minded to probe his counter affidavit wherein he said he was practicing in the United Kingdom. There were other falsehoods. By the time this witness and PW3 concluded their testimony, the evidence of Mr. Goatman assumed a posture of completely credible evidence. The Institution attended by the 1st respondent was in existence. His Certificate was issued by Mr. Goatman who remembers him as his student.
The tribunal considered PW4 as an unreliable witness and they were right.
One other puzzle to us in wading through the huge record of proceedings is the use ofPW3, a retired Police Officer who happens to be the chairman of the 3rd appellant, the Peoples Democratic Party to proffer evidence rejecting the qualification and certificates of the 1st respondent. According to him, he was not satisfied with the 1st respondent’s qualification to contest the election which he won and the Institutions which issued the certificates exhibits C and C1 were not recognised. In my respectful view, this witness’s testimony is irrelevant to the allegation about forged certificate so critical to the case of the appellants. A man who was not living in England, nor been to its Companies Registry, nor was the head of Borno Teacher’s College as admitted by him, had nothing to offer regarding the status of Institutions in England nor what went on in the Teacher’s College, in Nigeria whose Principal the appellants ought to have called, as earlier stated.
Then came the onus of proving their allegation of presenting a forged document, a criminal offence required by law to be proved beyond reasonable doubt in accordance with section 138 of the Evidence Act. See Waziri Ibrahim v. Shehu Shagari (1983) 2 SCNLR 176 at 201; Opia v. Ibru (1992) 2 NWLR (Pt 231) 658 at 708; Falae v. Obasanjo (No.2) (1999) 4 NWLR (Pt. 599) 476 and Ukpo v. Adede (2002) 3 NWLR (Pt. 755) 671 CA. I have no doubt that the appellants and their witnesses failed to discharge that onus. I come to this conclusion, inspite of the quibbling engaged in by the appellants in their brief of argument and submission before us on this issue. They quibbled that they were not saying that it was the 1st respondent who forged the certificate. This is so, inspite of what I consider the devastating blow on their case produced by the evidence of Mr. Goatman, which the appellant’s “carefully” tried to fence out of. The documents earlier listed, tendered by Mr. Goatman cannot be faulted. There is evidence as to the certificate of the 1st respondent issued by him, a Director of an existing legal entity and institution.
If the appellants now say, as their learned counsel submitted before us, that the 1st respondent did not forge the certificate, who then were they saying forged it. They did not tell the tribunal. But surely it was not Mr. Goatman – a further pointer to the failure of the case of the appellants.
Viewing the case of the appellants before the tribunal, as a whole as conducted and presented and the evidence on record, the petitioners created the impression of indulging in a fencing game or a fishing expedition which in the end may not yield fruit. The lesson which Aniagolu, JSC sought to teach parties to suits in court goes down well here. The learned Justice of the Supreme Court stated that justice is not a fencing game. – See Afolabi v. Adekunle (1983) 2 SCNLR 141, (1983) 8 SC 98 at 119.
Parties must be consistent, forthright and forth coming in putting forward their case.
Leaving the substance of the claim or evidence vital to establish the case is detrimental to any party who indulges in it.
In this matter, both in relation to the proof of the allegation of presenting forged certificate etc, against the 1st respondent and also that the 2nd respondent did not possess the requisite certificate, I am bound to conclude that the appellants failed to prove what they have asserted and their petition rightly failed and was dismissed by the election tribunal.
In the light of the foregoing reasons and my learned brother, Ogbuagu, JCA’s detailed reason supported by a plethora of legal authorities, I would myself dismiss this appeal. It is without merit and is hereby dismissed.
I abide all the other orders set out in the leading judgment, including the order as to costs.
Appeal dismissed.

 

Appearances

Chief Awomolo, A.S. SAN – (with him, Wadani, O. Esq., Sunoma, D.B. Esq., Dlakwa, H. M. Esq., Amuda, J.G. Esq., and Abimbola, AA Esq.)For Appellant

 

AND

Yusuf O. Ali, SAN – (with him, Usman, Y. SAN, Chief Clarke R. Esq., Ikagama, Esq., James, O. B. Esq., Bello, PA Esq., Tatama, U. T. Esq., Adamu, M.A Esq., Eleja, K.K. Esq., Uwais, A T. Esq. and Okoh. J. Esq.)
Okupe, A A. Esq. (with him, Zanna, W. Esq.)For Respondent

 

Close Menu