HON. CHIDI IBE & ANOR V. HON. RAPHEAL NNANNA IGBOKWE & ORS
(2012)LCN/5625(CA)
In The Court of Appeal of Nigeria
On Friday, the 19th day of October, 2012
CA/OW/EPT/06/2012
RATIO
WORDS AND PHRASES: MEANING OF FORGERY
The 9th edition of the Black’s Law Dictionary at page 722 defines ‘forgery’ as:
- The act of fraudulently making a false document or altering a real one to be used as if genuine (the contract was void because of the seller’s forgery). Though forgery was a misdemeanor at common law, modern statutes typically make it a felony.
- A false or altered document made to look genuine by someone with intent to deceive (he was not the true property owner because the deed was a forgery) also termed fake.
- Under the Model Penal Code, the act of fraudulently altering, authenticating, issuing, or transferring a writing without appropriate authorization …” PER UWANI MUSA ABBA AJI, J.C.A.
WORDS AND PHRASES: DISTINCTION BETWEEN FRAUD AND FORGERY
The Editors of the Black’s Law Dictionary also recognize that, “‘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 an agent of the Ostensible maker or drawer.”
In other words, every fraudment making or dealing with a document is a forgery but not every forgery involves fraud. This explains why the criminal offence of forgery could not possibly be inferred from every pleading in relation to forgery. See the unreported case of Ukwunna vs. Ukwunna in appeal No. CA/PH/317/2006 delivered on the 25th day of May, 2011, per Owoade, JCA PER UWANI MUSA ABBA AJI, J.C.A.
SUBPOENA: NATURE OF SUBPOENA
The power to issue subpoena addressed to a person wanted as a witness is vested in the Court in the exercise of its powers. The subpoena in short is an order of the Court. It may be for the person to attend the Court and testify only, in which case it is known as subpoena ad testificandum or for the witness to produce documents in his possession or control which is referred to as subpoena duces tecum or for the witness to testify and to also produce document. Subpoena duces tecum ad testificandum. PER UWANI MUSA ABBA AJI, J.C.A.
PROCEDURE: DUTY OF A PERSON SERVED WITH A SUBPOENA
It is trite that once a person is served with a subpoena, he is bound to attend before the Court notwithstanding any objection in law there may be to his giving the evidence or producing the document required. PER UWANI MUSA ABBA AJI, J.C.A.
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
HARUNA M. TSAMMANI Justice of The Court of Appeal of Nigeria
Between
1. HON. CHIDI IBE, MFR
2. ALL PROGRESSIVE GRAND ALLIANCE (APGA) Appellant(s)
AND
1. HON. RAPHEAL NNANNA IGBOKWE
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
3. RESIDENT ELECTORAL COMMISSIONER, IMO STATE
4. RETURNING OFFICER FOR AHIAZU/ EZINIHITTE MBAISE FEDERAL CONSTITUENCY Respondent(s)
UWANI MUSA ABBA AJI, J.C.A. (Delivering the Leading Judgment): This is an appeal from the decision of the National/State Assembly Election Tribunal sitting at Owerri delivered on the 22nd day of August, 2012 which dismissed the Petitioners/Appellants’ Petition in respect of Ahiazu/Ezihinitte Mbaise Federal Constituency on the election held on the 25th day of February, 2012.
In its judgment delivered on the 25th November, 2011, this Court ordered a re-run election to be conducted by the 2nd Respondent, Independent National Electoral Commission (INEC) for Ahiazu/Ezinihitte Mbaise Federal Constituency, Federal House of Representative within 90 days from the said judgment following the nullification of the election conducted by the 2nd Respondent on the 16th April, 2011.
Both the 1st Appellant and the 1st Respondent were candidates at the said election wherein the 2nd to 4th Respondents returned the 1st Respondent as the winner of the election having scored the highest number of votes cast at the said election. The Appellants being dissatisfied with the conduct of the said election and the return of the 1st Respondent as the winner of the election instituted a petition at the National Assembly Election Tribunal on the 15th day of March, 2012 based on four grounds as stated in paragraph B (a), (b), (c) and (d) of the petition as follows:
(a) That the 1st Respondent whose election is questioned was at the time of the election not qualified to contest the election.
(b) That the return of the 1st Respondent was invalid by reason of corrupt practices and substantial non compliance with the provisions of the Electoral Act 2010 as amended in respect of the Wards and polling Units complained of at the petition.
(c) The 1st Respondent was not duly elected by the majority of lawful votes cast at the election.
(d) The election was invalid in view of the fact of its having been conducted in non-compliance with the order of the court of Appeal in Appeal No. CA/OW/EPT/45/2011 which order was predicated on the provision of Section 140 (2) of the Electoral Act 2010 as amended.
WHEREFORE the PETITIONERS pray that it be determined as follows:
(a) That the 1st Respondent was not qualified to contest the election of the Ahiazu/Ezinihitte Federal Constituency conducted on the 25th day of February, 2012.
(b) That the 1st Respondent was not validly elected by the majority of lawful and valid votes cast at the 25th February, 2012 Ahiazu/Ezinihitte Federal Constituency.
(c) That the 1st Respondent did not score the majority of the lawful and valid votes cast at the said election.
(d) That the return of the 1st Respondent be set aside/nullified as election was conducted in non-compliance with order of the Court of Appeal in Appeal No. CA/OW/EPT/45/2011 pursuant to Section 140 (2) of the Electoral Act 2010 as amended made on 25th day of November, 2011.
(e) That the 1st petitioner scored the majority of lawful and valid votes cast at the said Election and ought to be duly returned as elected.
(f) That the purported results from the polling units in Community School Lude I, Umuekeawa Hall, Ariam Hall Ekwerazu Town, community school Ekwerazu, Group School Elekeneowasi, community school Akpim 1, Umuediabali Hall, Central School Eziama, Ihitte Ubi Community School Umuesochi Ehiriano Mbara, Nkwo Umuegwu, Central School Ogwuama, Ogwuama Civil Centre in Ahiazu Mbaise, and Amuda II polling unit, Amaorji Hall polling unit, Umubo Hall Polling unit, Umuotirikpo polling unit, Umuochaku Hall, umuokwuru, Umuocham Hall and Umuomnoke hall polling unit in Ezinihitte Mbaise, be cancelled and a bye election conducted in those areas if the Honourable Tribunal deems it necessary.
(g) That election be conducted in the following units: the polling units Onicha Ward iv in Ezinihitte Mbaise Local Government namely: Omukwu square I Eziama Hall Omukwu Hall, Omukwu square II polling units. Some polling units in Choneze/Akpodim ward in Ezinihitte Mbaise Local Government Area of Imo State namely: Umuowuru Owutu, Eziala Owutu, Umuagom I Owutu and Umuagom II Owutu Polling units. In Ahiazu Mbaise LGA, no election took place in the following polling units of Ogbe ward namely: Umuokeawa hall and Ndiohia Hall Polling units and Obohia/Ekwerazu town namely: Community Primary School, Obohia 1.
OR IN ALTERNATIVE TO PRAYERS 16 (A & G):
(h) That the Ahiazu/Ezinihitte Federal Constituency Election held on the 25th February, 2012 be set aside for having being conducted in non compliance with the Order of the Court of Appeal in Appeal No. CA/OW/EPT/45 2011 made on 25th November, 2011 pursuant to 140 (2) of Electoral Act 2010 as amended and for the non qualification of the 1st Respondent to contest the said election.
It is clear from the records of appeal that at the pre-hearing session of the petition, the petitioners/Appellants withdrew and abandoned grounds (b) and (c) of the petition thus leaving the petition with only grounds (a) and (d) thereof.
The parties joined issues and the petition went into trial.
The case of the petitioners as can be gleaned from paragraphs 8(a) and (d) and 10(a) (d) (e) (f) and (g) of the petition is that the 1st Respondent was not qualified to contest election into the National Assembly for Ahiazu/Ezinihite Mbaise Federal Constituency of Imo State for presenting forged Certificates i.e. BSC Degree Certificate and NYSC Certificate to the Independent National Electoral Commission (INEC), the 2nd Respondent in this appeal. It is the case of the Appellants that the BSC Certificate was forged because the 1st Respondent falsely claimed that he was a graduate of Accountancy of Abia State University, Uturu (ABSU) when he knew he did not graduate from the said University in 1994 as he claimed.
To prove this assertion, the Appellants amongst other documents relied on the Order of proceedings of the Abia State University, Uturu (ABSU) at its 1996 Convocation ceremony which contained the names of the 1994 Graduates of the said University and in which the name of 1st Respondent was conspicuously omitted. The said brochure was tendered in evidenced as Exhibit ‘I’. The Appellants also tendered Exhibit 7, a letter addressed to the Registrar, Federal High Court, Owerri written by one Prof. Ogbuagu, the Vice Chancellor of Abia State university, Uturu, and which letter together with a Certified True Copy of BSC Certificate belonging to one Nwosu John Kingsley was tendered in proceedings in Suit No, FHC/OW/CS/91/2011 – between Chinwe N. Onwuha vs. PDP & Ors, They also tendered Exhibit ‘9’ the Certified True Copy of 1st Respondent’s BSC Degree Certificate from ABSU.
The 1st Respondent’s case as can also be gleaned from his reply to the petition is a denial of the petitioners allegation wherein he insisted that he graduated from Abia State University, Uturu in 1994 whereof he obtained a BSC Degree Certificate in Accountancy and tendered a Certified True Copy of the said Certificate as Exhibit ’19’. Original copy of Exhibit ‘9’ or ’19’ was admitted as Exhibit 21.
The 2nd to 4th Respondents’ case is that the document presented to it by the 1st Respondent was not forged to the best of its knowledge. The 1st Appellant tendered several Exhibits it’s to wit Exhibits ‘1’, ‘2’, ‘3’, ‘4’, ‘5’, ‘6’, ‘7’, ‘8’, and ‘9’, in evidence.
At the close of evidence, learned Counsel addressed the Court and in a considered judgment delivered on the 22nd day of August, 2012, the Tribunal dismissed the petition of the Appellants and affirmed the declaration and return of the 1st Respondent by the 2nd Respondent as the winner of the election held on the 25th February , 2012,
The Appellants are aggrieved by the said decision and appealed to this Court vide a Notice of Appeal dated 24th day of August, 2012 and filed on the 25th day of August, 2012 upon nine (9) grounds of appeal as contained on pages 852 to 860 of the Records of Appeal.
Parties filed and exchanged briefs of argument. In the Appellants’ brief of argument settled by K.C, Nwufo Esq., Learned Counsel distilled nine (9) for determination as follows:-
(i) Whether the false date of 30th September 1994 in Exhibit 9, 19 or 21, whereas it was signed by Prof Ogwo E. Ogwo between 2000 and 2005, was not enough to hold that the said Exhibit 9, 19 or 21 is a forged document?
(ii) Whether the Learned Trial Judges were right when they attached no probative value or weight to Exhibit “7”, a certified document, simply because the maker thereof was not called as a witness?
(iii) Whether the Learned Trial Judges were right when they held that failure of the Petitioners/Appellants to field Prof. Sam O. Igwe and Prof. Chibuzo Ogbuagu who were allegedly subpoenaed was fatal to the Petitioners/ Appellants’ case?
(iv) Whether the swearing in of the DW3 who was on subpoena Duces Tecum and who made no Written Deposition was proper in Law?
(v) Whether the Learned Trial Judges were right when they held that the NYSC Certificate of the 1st Respondent Exhibit “15” was not forged having regard to the fact that Exhibit “16” withdrew Exhibit “8” and for the failure of the Petitioners/Appellants to cross-examine the DW3 on the details of the emergent facts mentioned in Exhibit “16”?
(vi) Whether the Learned Trial Judges were right when they held that NYSC Certificate is not envisaged in section 66(i)(h) of the 1999 Constitution of the Federal Republic Nigeria?
(vii) Whether the Learned Trial Judges were right when they held that the election of 25th February 2012 was properly held within three months after finding as a fact and indeed holding that the said election was conducted in breach of the order of the Court of Appeal made in Appeal No. CA/OW/EPT/45/2011 on the 25th day of November 2011?
(viii) Whether the Learned Trial Judges were right when they held that Exhibit “1” was not a conclusive proof of names of Graduating Students of the ABSU for 1994 and that it was rather a Register kept by the University aforesaid pursuant to Section 24 of the ABSU Law that is the conclusive Proof?
(ix) whether the Judgment of the Tribunal is not against the weight of evidence before the Tribunal? (Ground Nine).
In the 1st Respondent’s brief of argument settled by Ikechukwu Ezechukwu, SAN, Learned senior counsel formulated the following nine (9) Issues for determination as follows:-
1. Whether the B.Sc Certificate exhibit 9, 19 or 21, issued by the Abia state university to the 1st Respondent is a forged certificate for the reason only that the said Certificate was signed by the Vice-chancellor and the Registrar of the University on a date other than the date appearing on the face of the Certificate.
2. Whether exhibit 7, letter written by Professor Ogbuagu, can be accorded any weight having regard to the fact that the maker was not called and subjected to cross-examination as a witness.
3. Whether the failure to call Professor Ogbuagu and S.O. Igwe was fatal to the case of the petitioners
(now appellants).”
4. Whether a witness under seupoena Duces Tecum and ad testificandum can give evidence without written deposition.
5. Whether the NYSC Certificate submitted to the INEC by the 1st Respondent was forged.
6. Whether NYSC Certificate is one of the type of Certificates envisaged by Section 66(i)(h) of the 1999 Constitution as Amended.
7. Whether the election of 25th day of February 2012 was held within 3 months of the determination of the Appeal in App. No. CA/OW/EPT/45/2011 and which is outside the 90 days ordered by the Court and if yes, whether the breach of the order of the Court of Appeal is a ground for nullifying the said election.
8. Whether exhibit 1 is a conclusive proof of names of graduating students having regard to the provisions of Section 24 of the ABSU Law.
9. Whether the judgment of the Court is against the weight of evidence.
The 2nd to 4th Respondents’ brief of argument settled by Dr. (Sir) U.U. Chukwumaeze Esq., and therein Learned Counsel formulated three (3) Issues for determination to wit:-
(i) Whether the Petitioners proved Ground A of the Petition.
(ii) Whether the election was conducted in breach of the Order of the Court of Appeal.
(iii) Assuming it was, what is the consequences.
At the hearing of the appeal on the 11th October, 2012, Learned Counsel for the parties adopted their respective briefs of arguments. Mr. K.C. Nwufo, Esq, adopted and relied on the Appellants’ brief of argument dated 3/09/2012 and filed on the 6/9/2012 and the reply briefs to the 1st Respondent’s brief of argument dated 9/10/2012 and filed on the 10th of October 2012 and that of the 2nd to 4th Respondents dated 24/9/2012 and filed on the same date as their argument in the appeal and urged the Court to allow the appeal.
Learned Counsel referred to Paragraph 41(1) and (3) of the First Schedule to the Electoral Act 2010 as amended to submit that DW3 testified contrary to the said paragraph without a written deposition. Learned Counsel also urged the Court to declare that 1st Appellant as the winner of the Election on the authority of the unreported case of Labour Party vs. NEC in Suit No.FHC/ABJ/SC/399/2011 delivered on 21/7/2011 by Hon. Justice G.O. Kolawole.
Learned Senior Counsel for the 1st Respondent, Ikechukwu Ezechukwu, SAN adopted the 1st Respondent’s brief of argument filed on the 8th of October 2012 as their argument in the appeal. Learned Counsel adumberated on two Issues, The first was on Exhibit 7, the letter dated 19/9/2011 tendered by the Appellants, whether it has any probative value. He submitted that the letter was dated 19/9/2011 while the decision in the case where the letter was tendered was delivered on the 6th of June 2011. The view of the learned Senior Counsel is that the letter cannot be the record of the Court and that the maker of the document has to testify so that he can be cross examined and urged the Court not to accord the document any probative value.
The second Issue adumberated by the Learned Senior Counsel is the argument of the Appellants’ counsel on the brochure of the convocation of the Abia State University Uturu, that since the name of the 1st Respondent is not captured in the brochure, he is not a Student of the University. He referred to Section 24 of the ABSU Law where he submitted, clearly stated who and who is a graduate of the University and not the brochure. He submitted that the only authority to say that 1st Respondent was a graduate of the University or not is the Register.
Learned Senior Counsel also submitted that the case of Babalola vs. The State, heavily relied upon the Appellants’ Counsel was cited out of con. He referred to the case of Idowu v. the State (1998) 11 NWLR (PT 574) 354 at 365 to submit that the mere fact that a date stated in a document is not correct does not make the document a forged document. He urged the Court to dismiss the appeal.
The Learned Counsel for the 2nd to 4th Respondents Dr. Chukwumaeze, Esq adopted the 2nd to 4th Respondent’s brief of argument dated 17/9/12 and filed on the same date and urged the Court to dismiss the appeal. Learned Counsel further submitted that Section 285 of the 1999 constitution provides for the time limit as to when to determine an appeal while the Electoral Act provides for the limitation of time for the conduct of an election or re-election. He thus submitted that the non-compliance of the Order of the Court should not invalidate an election which was conducted incompliance with the Electoral Act. He placed reliance on the case Anike v. SPDC (Nig.) Ltd (2012) ALL FWLR (PT.638) 975 at 992 and urged the court dismiss the appeal.
Learned Counsel also submitted that the relief to declare the 1st Appellant as the winner of the election was not part of the reliefs claimed by the Appellants before the Tribunal.
I have considered the issues for determination formulated by the respective Counsel. The issues formulated by the Appellants and the Respondents are only differently couched but are the same in con while the 2nd – 4th Respondents three issues can be subsumed into the issues canvassed by the Appellants, In the circumstances, I will adopt the issues formulated by the Appellants in the determination of this appeal. However, I will take issues 1, 2 and 3 together and issues 5 and 6 will be considered together while issues 4, 7, 8 and 9 will be considered independently.
In arguing issues 1, 2, and 3, Mr. Nwufu, Esq of Learned Counsel for the Appellants submitted that the false date of 30th September, 1994 ex-facie in Exhibit 9, 19 or 21 whereas the said Exhibit was signed by Prof. Ogwo E. Ogwo between 2000 and 2005 was enough to hold that the said Exhibit is a forged document. Learned Counsel referred to Section 66 (i)(h) of the 1999 Constitution as amended to submit that this Section has been upheld as a disqualifying factor by the Supreme Court in the case of Ucha vs. Onwe (2011) ALL NWLR (Pt.589) 1227 at 1295; (2011) 4 NWLR (Pt.1237) 386 At 427. It is submitted that the 1st Respondent did not deny presenting the said certificate which was admitted in evidence as Exhibit 9, 19 or 21 to the 2nd Respondent (INEC). Learned Counsel submitted that it is the case of the Appellants which was proved before the Tribunal that the Bsc Degree Certificate Exhibit 9, 19 or 21 was not signed by Prof. Sam O. Igwe who was the sitting Vice Chancellor of the Abia State University, Uturu as at 1994 when the said BSc Degree Certificate was dated, sealed and signed.
Learned Counsel referred to paragraph 11(a) of the 1st Respondents reply to the petition and paragraph 13 (i) of the 1st Respondent’s written Statement on Oath and the written Statement on Oath of DW4 and DW5 and their answer under cross examination which all stated that the BSc Degree Certificate of the 1st Respondent was issued between 2000 and 2005 and signed by Prof. Ogwo E. Ogwo and not Prof. Sam. O. Igwe, the sitting Vice Chancellor as at that time. Learned Counsel referred to the case of Olufemi Babalola & Ors. Vs. The State (1989) 4 NWLR (pt. 115) 264 at 272 to submit that forgery of a document has been defined to include when the document tells a lie about itself. He submitted that the conclusion reached by the Tribunal that the fact that the certificate was signed and issued between 2000 and 2005 was not sufficient to say that it was forged is wrong as the Tribunal failed to be guided by the decision in Olufemi Babalola Vs. The State (supra) where the Supreme Court defines forgery to Include when a document tells a lie about itself. He submitted that the reliance by the Tribunal on the unreported decision of the High Court in Hassan v. COP, CCHJ/6/75 and the 1959 decision in Abdulraheem Ligali v. The Queen (1959) SCNLR 14 at 21 is contrary to the doctrine of stare decisis citing the authority of Obiuwgubi vs. CBN (2011) 7 NWLR (PT 1247) 465 at 501.
It is also submitted by the Learned Counsel that the failure of Prof. S. O. Igwe and prof. Ogbuagu to testify in respect of Exhibit 7 influenced the decision of the Tribunal to the contrary that forgery was not proved even when Exhibit 7 was duly certified by the office of Prof. Ogbuagu. He referred to the case of Ogbuinyinya vs. Okudo (1979) 12 NSCC 77 to submit that the document could even be tendered from the bar and that by virtue of Section 146 of the Evidence Act, 2011 the document could be deemed genuine and from proper custody.
Learned Counsel also submitted that the admission of DW4 and DW5 that it was Prof. Ogwo and not Prof, Igwe who signed Exhibit ‘9’, ’19’ or 21′ between 2000 and 2005 enures to the benefit of the Appellants and relied on the authority of Fayemi v. Oni (2009) 7 NWLR (Pt.1140) 223 and 269; Omisaodu v. Elewuju (2006) 13 NWLR (Pt.998) 517 at 532. We were urge to resolved this issue in favour of the Appellants.
In arguing the 2nd issue, Mr. Nwufo, Esq submitted that the Tribunal was wrong when it attached no probative value or weight to Exhibit 7, a certified document simply because the maker thereof was not called as a witness. He submitted that Exhibit 7 were copies of documents from ABSU duly certified by the office of Prof Ogbuagu, the incumbent Vice Chancellor of ABSU and he need not personally tender them in evidence before the Tribunal and could have been tendered from the Bar, placing reliance on Daggash vs. Bulama (2004) ALL FWLR (Pt.212) 1666 at 1710; and Ogbuinyinya v. Okudo (1979) 12 NSCC 77.
He submitted that the authenticity of Exhibit ‘7’ was not questioned by DW4 and DW5 who are Senior Officers of the University and that by Section 146 of the Evidence Act 2011 the said Exhibit 7 is deemed genuine and from proper custody and the Court was urged to so hold and to resolve the issue in favour of the Appellants.
On issue No. 3, Nwufo, Esq for the Appellants submitted that the Tribunal was wrong when it held that the failure of the Appellants to field Prof. Sam O. Igwe and Prof. Chibuzo Ogbuagu who were allegedly subpoenaed was fatal to the Appellants’ case, Learned Counsel submitted that Prof, S. O. Igwe was to appear and confirm that he did not sign Exhibit ‘9’, ’19’ or ’21’ but that DW4 and DW5 both in their written statements on oath and under cross examination admitted that it was Prof, Ogwo E, Ogwo and not Prof. Sam O. Igwe who signed Exhibit ‘9’, ’19’, or ’21’ and that Prof. Ogwo E. Ogwo admitted signing the said Exhibit ‘9’, ’19’ or ’21’ when it was issued between 2000 and 2005. It is submitted as held by the Tribunal that the Evidence of DW4 and DW5 enures to the benefit of the Appellants whose case it supported, The Court was urged to resolved the issue in favour of the Appellants.
In response, the Learned Senior Counsel for the 1st Respondent Mr. Ezechukwu, SAN after a recapitulation of the facts of the case submitted that the Tribunal was unassailably right in holding that Exhibit ‘9’, ’19’, or ’21’, i.e that BSc Degree Certificate issued to the 1st Respondent by the ABSU was not forged. He submitted that it is a common ground to all the parties that forgery is a crime and that presentation of forged certificate is also a crime under the criminal code by virtue of Section 468 of the criminal code. He submitted that the standard of proof required by Section 135(1), (2) of the Evidence Act 2011 is proof beyond reasonable doubt. He placed reliance on the cases of Ukpo vs. Adede (2001) ALL FWLR (pt.77) 8S0 at 802 and 864. Opara vs. State (2006) 9 NWLR (Pt 986) 509 at 516 to submit that the Appellants have failed in discharging the heavy burden placed on them to prove beyond reasonable doubt that Exhibit ‘9’, ’19’ or ’21’was a forged document and that the trial Tribunal rightly found that BSc certificate issued to the 1st Respondent was not forged and that the said certificate was genuine and authentic.
On Exhibit 7, Learned Senior Counsel submitted that it cannot be ascertained that the said letter actually emanated from Prof. Ogbuagu who purportedly made it and the letter which was addressed to the Registrar Federal High Court, Owerri was tendered by the 1st Appellant who had the onus to show that he knew Prof, Ogbuagu and he knew his signature. It is also submitted that the 1st Appellant has the opportunity of confronting the DW4 the incumbent Registrar of ABSU with Exhibit 7 and the attachment thereof to confirm or deny that the signature on Exhibit ‘7’ and its attachment are that of Prof. Ogbuagu and S. O. Igwe respectively. He also submitted that even if DW4 had identified the signatures on Exhibit 7 as those of Prof. Ogbuagu and Prof. S. O. Igwe, the documents would still have no evidential value if neither of them gave evidence and was cross examined with respect to the contents and the circumstances of making the documents. It is therefore submitted that the failure to call both professors Ogbuagu and S. O. Igwe to prove that they authored Exhibit 7 and the certificate of Nwoso John Kingsley attached to the Exhibit is fatal and rendered the said Exhibit 7 and the said attachment worthless. Reliance was placed on the cases of Aituma vs. State (2007) ALL FWLR (PT 381) 1811; and Alake v. State (1992) 9 NWLR (PT 262) 290.
Learned Senior Counsel submitted that Exhibit 7 and its attachment being a certified true copy is admissible and the value to be attached to it is a different matter altogether and relied on the case of; Lambert vs. Nig. Navy (2006) 7 NWLR (Pt.890) 514 at 526; Buhari v. INEC (2008) 19 NWLR (Pt.246) 281; and Omega Bank v. OBC 21 NSCQR 771 at 776.
Learned Counsel also submitted that the case of Daggash vs. Bulama (2004) ALL FWLR (PT 212) 1666 at 1710 heavily relied upon by the Appellant’s Counsel to drive home his argument that Exhibit 7 ought to be accorded weight was purely decided on the issue of admissibility and did not decide on the issue of weight. He also submitted that the presumption raised by sections 111 and 112 of the Evidence Act is merely a presumption of genuineness of the document but not the truth or otherwise of the contents of the said document. He referred to the case of Our Lines Limited vs. SCC Nigeria Limited (2009) 17 NWLR (Pt.1170) 380 at 382.
On Exhibit I, Learned Senior Counsel submitted that the omission of 1st Respondent’s name in it was not conclusive evidence that the 1st Respondent was not a graduate of ABSU. Learned Counsel submitted that Section 24 of the ABSU Law deals with the membership of convocation of any particular year and that the order of proceedings of a convocation ceremony Exhibit ‘1’ is not the Register or document contemplated by Section 24 of ABSU Law, and that no Register was tendered by the Appellants nor was DW4 confronted with the fact whether or not 1st Respondent’s name is on the Register. The case of Imam vs. Sheriff (2005) 4 NWLR (Pt.914) 80 at 167 – 168 was relied upon.
On whether the signing of the certificate on a date other than the date appearing on the face of it makes such a document a false document. Learned Senior Counsel submitted that DW4, the incumbent Registrar of ABSU testified that the certificate is genuine and DW5 who signed the certificate acknowledged he signed the said certificate as was presented to him and that it was not forged. Learned Senior Counsel submitted that the Tribunal was right when it placed reliance on the case of Lateef Alhaji Hassan v. Comm. Of Police CCHCJ/6/75 page 867 at 870 and 811 where the same position was taken by the Federal Supreme Court in the case of Abdulraheem Ligali vs. The Queen (1959) SCNLR 14 when it held that the certificate was not forged merely because of the discrepancy in the dating. Learned Senior Counsel further submitted that the 1st Respondent will not be made to suffer for the mistake if any, of the administrative officers of the University in dating and sealing the certificate, He relied on the case of Adedeji vs. Military Admin (2008) 13 WRN 153 at 156. Learned Counsel finally submitted that the 1st Respondent did not supply any false information in his FORM EC4B about his qualification that he obtained his BSc Degree Certificate from ABSU in 1994. That the 1st Respondent did not give any information in Form EC4B (iv), Exhibit ‘2’ and CF 001, Exhibit ‘3’ or any other form to INEC which is false. We were urged to resolve the issues in favour of the 1st Respondent.
The 2nd to 4th Respondents through their Counsel Dr. Chukwumaeze, Esq submitted that the contention of the Appellants that the 1st Respondent submitted forged University Degree and NYSC discharge Certificates to the 2nd to 4th Respondents was stoutly denied by the Respondents and the onus probandi fell on the Appellants under section 131 (1) of the Evidence Act 2011, and that the proof is beyond reasonable doubt citing Section 135 (1) of the said Evidence Act and the case of Oluwepo v. Saraki (2009) ALL FWLR (Pt.498) 256 at 311.
Learned Counsel referred to the definition of forgery as contained under Section 465 of the Criminal Code and the ingredients of the offence thereof and the case of Odiawa v. FRN (2008) ALL FWLR (Pt.439) 436 at 472 to 473 to submit that the Appellants have not proved any of the ingredients of forgery beyond reasonable doubt. He submitted that the evidence of DW4 and DW5 called by the 1st Respondent clearly settles the issue of forged BSc Degree in Accountancy Certificate issued to the 1st Respondent by ABSU. Learned Counsel also submitted that the evidence DW2, the Director of Verification representing the Director General NYSC producing Certified True Copy of the discharge Certificate of the 1st Respondent also settled this issue.
He submitted that the Appellants’ contention is as to who signed the Certificate, Learned Counsel submitted that there is no provision in the Abia State University Law where it was stated that Certificate must be signed by a natural person. He submitted that the signing of certificates is the responsibility of the office of the Vice Chancellor created by Section 12 of the Abia State University Law and the Registrar created by section L4 of the said Law. Learned Counsel also submitted that even if the signing of the Certificate by a latter Vice Chancellor turned the document into a lie, the Appellants failed to prove that the lie was authorized by the 1st Respondent. He submitted that there is no evidence from the Appellants or even the 1st Respondents witnesses showing that the 1st Respondent was a party to or in complicity in the signing of the Certificate after 1994 or back dating it to 1994, His view is that the Certificate submitted to the INEC even if it contained a lie, did not qualify as a forged document within the con of Section 66(1)(h) of the Constitution. On the Issue of Exhibit 7, Learned Counsel submitted that even though the Exhibit was admitted, the Tribunal is not bound to attach any weight to such a document. He submitted that the Judgment of the Federal High Court was delivered on the 6th of June 2011 and the Certified True Copy was obtained on 10/8/2011, Exhibit 13, but a letter purportedly written to the Registrar of the Federal High court in the cause of the proceedings that led to Exhibit 13 was dated 19/9/2011 and received on the 20/9/2011, 3 months and 13 days after the Judgment was delivered and a month and three days after the Certified True Copy of the Judgment was obtained. Learned Counsel submitted that no reasonable Tribunal will attach any weight to such a worthless document and that at best Exhibit 7 is a confirmation of how Prof. S.O. Igwe signs his signature and did not state that any Certificate not signed by Prof. S.O. Igwe is forged and it cannot be used to impute forgery on any other certificate not signed by him. Learned Counsel also submitted that the finding of the Tribunal that the failure of the Appellants to bring Prof. Sam O. Igwe and Prof, Chibuzo Ogbuagu is unimpeachable, He relied on Ogunsakin v. Ajidara (2010) ALL FWLR (PT. 507) 109 at 131.
On the NYSC discharge Certificate that it is forged, Learned Counsel submitted that no forged NYSC Certificate was tendered and that Exhibit 8 tendered by the Appellants does not prove that the NYSC discharge Certificate was forged in view of Exhibit 16 which was latter in time and emanated from the NYSC and made reference specifically to Exhibit B.
In his reply to the 1st Respondent’s brief of argument, Learned Counsel for the Appellants, Mr, Nwufo, Esq submitted that the case of Ukpo vs. Adede (Supra) cited by the 1st Respondent’s Counsel to support the contention that where allegation of crime is involved in a civil trial, the same must be proved beyond reasonable doubt, he submitted that it is not in very civil trial such as in the instant matter that an allegation of crime must be proved beyond reasonable doubt, Reliance was placed in the Supreme Court decision in Imonikhe vs. Unity Bank Plc (2011) 12 NWLR (PT 1262) 624 at 64. He therefore submitted that the use of the word ‘forgery’ in Section 66 (i)(h) of the 1999 Constitution was not used in the, strict light of the criminal code but in the general sense of obtaining advantage by unfair means over and above others. He also submitted that the Tribunal found as a fact that the said BSc Degree Certificate was forged and that the said Exhibit ‘9’, ’19’ or ’21’ told a lie about itself and which lie was corroborated by the evidence of DW5, Prof. E. Ogwo. On Exhibit 7, Learned Counsel maintained that there was no dispute over the matter of Exhibit 7 before the Tribunal during the hearing of the petition. On the argument by the 1st Respondent that Prof, Ogbuagu or Prof. Igwe would have been required to explain whether the certificate was signed and issued before or after convocation, it is submitted that there was evidence that degree certificates are signed by the sitting Vice Chancellor at the time the students graduate, the evidence of an alleged tradition permitting any incumbent Vice Chancellor to sign degree certificate of a previously graduated student having been rejected by the Tribunal. That DW5, Prof. Ogwo, having admitted signing Exhibit ‘9’, ’19’ or ’21’ between 2000 and 2005 and back dating same to 1994 shows that Exhibit ‘9’, ’19’ or ’21’ told a palpable lie about itself which made the Exhibit ‘9’ a forgery as per the Supreme Court decision in Babalola vs. The State (1989) 4 NWLR (Pt. 115) 264 at 272. He also submitted that reliance placed on the cases of Lambert v. Nig. Navy (2006) 7 NWLR (Pt.980) 514 at 526; Omega Bank v. OBC 21 NSCQR 771 at 776; Our Lines Ltd v. SCC. Nig. Ltd (2009) 17 NWLR (Pt.1170) 380 at 892 is testimony that the Tribunal used two different criteria in dealing with the petition before it while attaching much weight to Exhibit 16 also a certified document which was not tendered by its maker. He submitted that this is unfair and relied on the case Adigun v. A.G. Oyo State (1987) 1 NWLR (Pt.53) 678 at 707 to 708 to bring home his argument.
With regard to Exhibit ‘1’, that it was not a conclusive evidence of those who graduated and that it was a Register kept in the University by virtue of Section 24 of the ABSU Law, Learned Counsel submitted that Section 24 of the ABSU Law is not a register of graduating students but a register of body of University Officers called convocation as opposed to graduating students. He also submitted that there is no any law authorizing any Vice Chancellor to sign certificate of those who graduated before he came into office as Vice Chancellor, otherwise DW5 would have said so rather than relying on an existent tradition which was rejected by the Tribunal, He submitted that the unreported High Court case of Hassan vs. COP CCHCT/6/75, 867 as well as the 1959 Supreme Court decision in Ligali vs. The Queen (supra) heavily relied upon by the 1st Respondent are inferior to the recent Supreme Court decision in Babalola vs. The State (Supra) wherein forgery was held to include when a document tells a lie about itself.
Learned Counsel also submitted that the presentation of the forged certificate by the 1st Respondent issued to him by the University constitutes a ground for disqualification, placing reliance on the Supreme Court decision in Uche v. Onwe (2011) 4 NWLR (Pt.1237) 386 at 427. That it is immaterial that the 1st Respondent knew or did not know it was forged. It is also submitted that the argument that 1st Respondent did not supply false information in his form EC4B(iv) Exhibit ‘2’ and CF 001, Exhibit ‘3’ is belated as there is no appeal against the finding of the Tribunal that he did.
In his reply to the 2nd to 4th Respondent’s argument, Learned Counsel submitted that the impression created that the Appellants needed to have called more than one witness to prove those two weighty grounds is misconceived as the Appellants case is mainly documentary which were duly admitted in evidence and the Appellants did not require any number of witnesses to prove his case, relying on the cases of Ajao v. Ashiru (1973) 8 NSCC 525 at 583; Eli v. Agid (2004) ALL FWLR (Pt.220) 1347 at 1362.
Learned Counsel also submitted that the Appellants never alleged that the 1st Respondent forged the said certificates but that he presented the forged certificates to the 2nd Respondent as required by Section 66 (1) (h) of the 1999 Constitution and urged the Court to discountenance the reliance on Odiawa vs. FRN (Supra). Learned Counsel further submitted that BSc Degree Certificate and NYSC discharge Certificate even if tendered in evidence by the Respondents and not the Appellant, it still enures to the benefit of the Appellants whose petition they support, on the authority of Fayemi vs. Oni (2009) 7 NWLR (PT 1140) 223 at 269. Learned Counsel also submitted that Exhibit 7 was not tendered by the Appellants for consideration by the Federal High Court in its Judgment Exhibit 13, but was indeed tendered before the tribunal and that same was written before the institution of the petition. It is also submitted that Exhibit 7 being a Certified True copy was admissible in evidence without the necessity of calling the maker. That the decision in Ogusakin vs. Ajidara (2010) ALL FWLR (Pt 507) 109 at 131 is inapplicable to the circumstances of his case. He also submitted that the admission of DW5 that he signed Exhibits ‘9’, ’19’ or ’21’ between 2000 and 2005 and back dated it to 30th September, 1994 remains a forged document in so far as it told lie about itself. He also submitted that the Vice Chancellor signing the degree Certificate must be the one sitting at the time of the student’s graduation.
Learned Counsel also submitted that Exhibit 16 did not take away the forgery in Exhibit ’15’ because the particulars of the alleged ’emergent facts’ mentioned in Exhibit 16 were neither stated ex-facie the said Exhibit ’16’ nor pleaded by the Respondents and that it was the duty of the 1st Respondent to place those emergent facts before the Tribunal in order to debunk the pleading of forgery by the Appellants as per the facts contained in Exhibit 8. I have carefully considered the submissions of Learned Counsel for the parties with regard to the issues canvassed above and the authorities cited in support of their respective positions.
The main complaint of the Appellants is the non qualification of the 1st Respondent to contest the election held on the 25/2/2012 for the seat of Ahiazu/Ezinihitte Mbaise Federal Constituency in the House of Representatives in that he presented forged certificates to the Independent National Electoral Commission (INEC), the 2nd Respondent in the petition. The forged certificates being alleged that the 1st Respondent presented to INEC are his BSc Degree Certificate in Accountancy from Abia State University (ABSU) and his NYSC discharge Certificate.
The contention of the Appellants is that the false date of 30th September, 1994 ex facie on Exhibit ‘9’, ’19’or ’21’, (Certified True Copies and Original Certificate) of BSc degree of Igbokwe Raphael U, the 1st Respondent herein whereas the said Exhibit ‘9’,’19’ or ’21’was signed by Prof. Ogwo E. Ogwo between 2000 and 2005 was enough to hold that the said Exhibit was forged.
The Appellants relied on the facts as pleaded in paragraph 10, (b) (d) (e) (D (g) and (h) of the petition.
The petition was anchored on Section 66 (i) (h) of the 1999 Constitution as amended which provides as follows:
66 (i) “No person shall be qualified for election to the Senate or the House of Representative if:
(h) he has presented a forged certificate to the Independent National Electoral Commission.”
Section 138 (1) (a) of the Electoral Act 2010 as amended also provides that, 138 (a) An election may be questioned on any of the following grounds that is to say:
(a) That a Person whose election is questioned was, at the time of the election, not qualified to contest the election.”
The Supreme Court in the case of Ucha vs, Onwe (2011) ALL FWLR (PT 580) 1227 at 1295; (2011) 4 NWLR (pt 1237) 386 at 427 upheld the provision of Section 66 (i) (h) of the 1999 Constitution aforesaid as a disqualifying factor.
It is not in dispute that the 1st Respondent never denied presenting his BSc Degree Certificate in Accountancy, from Abia State University and his NYSC discharged Certificate to INEC but contended that they were not forged documents. The Tribunal also found the existence of such certificates and that same were presented to INEC.
The crux of the issue now is whether these certificates were forged as contended by the Appellants when in fact the Tribunal found to the contrary when it held at page 845 of the Record of Appeal as follows:
“In view of this, the only falsity or false statement in Exhibit ‘9’, ’19’ or ’21.’ is the date of sealing and signing inserted in the certificate which is 30th September, 1994. The false statement is corroborated by the evidence of Prof. Ogwo E. Ogwo himself when he stated under cross examination by the petitioners’ Counsel that he signed 1st Respondent’s certificate during his tenure as the Vice Chancellor of the University between 2000 – 2005, These pieces of evidence in fact gave lie to the date 30th September, 1994 inserted in the certificate. The date of sealing and signing ought to have been when Prof, Ogwo E. Ogwo actually signed the certificate.”
The Tribunal then held at page 846 of the Record of appeal as follows:
“In the light of the foregoing, we hold that the mere fact Exhibit ‘9’ ’19’ or ’21’ contained false statement does not necessarily make it a forged document within the meaning of Section 465 of the Criminal Code.”
Now, the question is, does a document which necessary tells a lie ex-facie about itself amounts legally to a forged document?
Mr. Nwufo, Esq, Learned Counsel contended on the authority of Olufemi Babalola vs. The State (1989) 4 NWLR (PT 115) 264 at 277 which defines forgery to include when a document tells a lie about itself, that the said Exhibit ‘9’ ’19’ or ’21’ is a forged document when it ex facie tells a lie about itself as regards the signing and the sealing of the said certificate when it was dated 30th September, 1994 but signed by Prof. Ogwo E. Ogwo between 2000 and 2005.
That the reliance placed by the Lower Tribunal on the unreported decision of the High Court in Hassan v. COP (Supra) and the 1959 decision of the Supreme Court in Abdulraheem Ligali v. The Queen (Supra) goes contrary to the principle of stare decisis as held by the Supreme Court in the case of Obiuweubi vs. CBN (2011) 7 NWLR (PT 1247) 465 at 501.
The Respondents, (the reference to Respondents here means not only the 1st Respondent but includes the 2nd to 4th Respondents) on the other-hand submitted that in the more recent decision of the Supreme Court in Idowu vs. The State (1998) 11 NWLR (PT 574) 354 at 365, it was held that the mere fact that the date stated in a document was not correct does not make the document a forged document.
The Respondents also argued that though the petition of the Appellants is in the form of a civil trial, any allegation of crime in the said civil trial must meet the standard of proof beyond reasonable doubt and where any doubt exists, such doubt must be resolved in favour of the 1st Respondent on the authority of Ukpo vs. Adede (Supra) and Opara vs. the State (Supra).
Learned Appellant’s Counsel however submitted that the use of the word ‘forgery’ in Section 66 (i) (h) of the 1999 Constitution was not used in the strict light of the criminal code but in the general sense of obtaining advantage by unfair means over and above others.
The 9th edition of the Black’s Law Dictionary at page 722 defines ‘forgery’ as:
1. The act of fraudulently making a false document or altering a real one to be used as if genuine (the contract was void because of the seller’s forgery). Though forgery was a misdemeanor at common law, modern statutes typically make it a felony.
2. A false or altered document made to look genuine by someone with intent to deceive (he was not the true property owner because the deed was a forgery) also termed fake.
3. Under the Model Penal Code, the act of fraudulently altering, authenticating, issuing, or transferring a writing without appropriate authorization …”
The Editors of the Black’s Law Dictionary also recognize that, “‘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 an agent of the Ostensible maker or drawer.”
In other words, every fraudment making or dealing with a document is a forgery but not every forgery involves fraud. This explains why the criminal offence of forgery could not possibly be inferred from every pleading in relation to forgery. See the unreported case of Ukwunna vs. Ukwunna in appeal No. CA/PH/317/2006 delivered on the 25th day of May, 2011, per Owoade, JCA
In the instant case, the learned Senior Counsel for the Respondents could not be right when they say that once there was an allegation of crime in the pleading of the Appellants because, Section 66(1)(h) referred to a forged certificate must be proved beyond reasonable doubt. Indeed there was none.
By the same token, the Appellants were not under any obligation before the Lower Court to prove the allegation of presenting forged documents beyond reasonable doubt. The provision of section 135(1) of the Evidence Act requires that the commission of a crime by a party to the proceedings must be directly in issue for the question of proof beyond reasonable doubt to be applicable under the provision, Therefore, the pleading in a civil proceeding must specifically impute the commission of a crime by a party for that provision to take effect. Consequently, it is therefore not incumbent on the Appellants to prove beyond reasonable doubt that the 1st Respondent’s BSc Degree in Accountancy obtained from Abia State University and his NYSC discharge certificates were forged. I therefore agree with the Learned Counsel for the Appellants that the word ‘forgery’ in Section 66(1)(h) of the 1999 Constitution was not used in the strict light of criminal code but in the general sence of obtaining advantage by unfair means over and above others and I so hold.
See also Imonike v. Unity Bank Plc. (2001) 12 NWLR (Pt.1262) 624 at 461. Now the question is, does the conclusion of the Tribunal that Exhibit ‘9’, ’19’ or ’21’ contained false statements as to the date of 30th September, 1994 inserted in the Certificate when the DW5 said he signed and issued it between 2000 and 2005 sufficient to say that the document was forged.
In trying to prove his case, the Appellants tendered inter alia Exhibits 1, 7, 8 and 9 to prove his allegation that the 1st Respondent presented a forged BSc Certificate in Accountancy from Abia State University, a forged NYSC discharge Certificate to INEC, the 2nd Respondent.
Exhibit 7 is a Certified True Copy of letter written to the Registrar of the Federal High Court Owerri by Prof. Chibuzor Ogbuagu dated 19th September 2011 but received on 20th September, 2011. The said Exhibit 7 is tilted Re: SUBPOENA AD TESTIFICANDUM IN THE FEDERAL HIGH COURT OF NIGERIA IN THE OWERRI JUDICIAL DIVISION HOLDEN AT OWERRI. SUIT NO: FHC/OW/CS/91/2011. It reads, “we refer to our letter dated May 12, 2011 with Ref. No. VC/24/XV/ on the above subject matter and re-submit the same content. Attached is the photocopy of graduate certificate of Mr. Nwosu JOHN KINGSLEY which is a sample of graduate certificate signed by Professor S. O. Igwe during his tenure as Vice Chancellor, Abia State from 1993 – 1999.
Attached therewith is a certified True copy of Abia State University, Uturu of one Nwosu John Kingsley who was awarded a BSc degree in marketing with second class lower division in December, 1994 and was dated 30th day of December, 1994.” The letter was signed by Prof, Chibuzo Ogbuagu.
The Suit No. under Ref in the said Exhibit Suit No. FHC/OW/CS/91/2011 is a suit between MRS. CHINWE N. ONWUHA AND PEOPLES DEMOCRATIC PARTY (PDP) AND ORS delivered on the 6th day of June, 2011. The said judgment is Exhibit 13 in this appeal.
Learned Counsel for the Appellants submitted that the purport of Exhibit 7 and its attachment was to show that Exhibit ‘9’, ’19’ or ’21’ was not signed by the sitting Vice Chancellor (Prof. Sam Igwe) as at 1994 when the certificate was dated. In dealing with Exhibit 7, the Tribunal refused to accord any weight or probative value to the said Exhibit. In fact, the Respondent argued that it cannot be ascertained that the said letter actually emanated from Prof. Ogbuagu who purportedly made it.
Exhibit 7 being a certified true copy can be admitted in evidence on its presentation. There is however a difference between admissibility and the probative value to be attached to the said document. The case of Daggash v. BULAMA (2004) ALL FWLR (Pt.212) 1666 at 1710 heavily relied upon by the Appellants Counsel was purely decided on the issue of admissibility and not on the issue of weight. In the instant appeal, it is my considered view that the Tribunal rightly rejected Exhibit 7 in its facts finding mission. Exhibit 7 was dated 19/9/2011 while the decision in the case where the letter was purportedly written was delivered on the 6th June, 2011. One wonders how it forms part of the record of the Court. In the circumstances, there is therefore the need for the Appellants to call both Prof, Sam O. Igwe, the Vice Chancellor and Prof, C. Ogbuagu and the Registrar to testify so as to be cross examined on the contents and circumstances of making such document. The Appellants attempted to call both the Vice Chancellor and the Registrar who authorised Exhibit 7 at its attachment but in their wisdom decided to give it up. The onus of proof of the origin, authorship, genuineness and correctness of Exhibit 7 and its attachment is with the Appellants to establish same on the preponderance of evidence. There is no corresponding duty on the 1st Respondent to disproof the genuineness of the said Exhibit, See Lambert vs. Nig. Navy (2006) 7 NWLR (Pt. 180) 5-14 at 526; and Buhari Vs. INEC (2009) 19 NWLR (pg.246) 281.
Exhibit ‘7’ even if it is believed is at best an attempt to confirm how Prof Sam O, Igwe signs his signature. It did not state that any certificate not signed by Prof, S.O, Igwe is forged, It cannot be used to impute forgery on any other certificate not signed by the said Prof Sam O. Igwe. The conclusion is that the failure of the Appellants to bring Prof. Sam O. Igwe and Prof Chibuzo Ogbuagu is fatal to their case. Where a document is challenged or impugned, the maker of the document should be called to support the document, otherwise, no weight should be attached to it. See Ogunsakin vs. Ajidara (Supra).
The question that I propose to ask here is how can a University Certificate dully signed by the sitting Vice Chancellor and the Registrar, those legally authorized to authenticate the document be forged simply because it was not signed by the sitting Vice Chancellor at the time the student graduated? I find no logic in this reasoning in the absence of any evidence before the Court to the contrary and there is no such contrary evidence in this appeal. The Appellants have not led any evidence to show that the 1st Respondent did not graduate in 1994 as clearly sealed in his Certificate, Exhibit 19′ ’19’or ’21’. The fact that the document tells a lie about itself because it was signed between 2000 to 2005 does not ipso fact makes Exhibit ‘9’ ’19’ or ’21’, the BSc certificate of the 1st Respondent a forged document and I so hold.
In considering whether a document is a forged document, one has to consider whether the document is false and whether it was made with intention that it be acted upon as genuine. Forgery as said earlier in this judgment is the false making of an instrument purporting to be what it is not. The fact that a document which tells the truth about itself also contains false statement does not ipso fact make it a forged document within the meaning of Section 467 of the Criminal Code in our law. I am guided in my view by the persuasive decision of the High Court in Hassan vs. COP (Supra), which Supreme Court in Abdulraheem Ligali vs. The Queen held a similar view that if a document existed, the fact that it contained false statement does not necessarily make it a forgery within the meaning of Section 467 of the Criminal Code. The heavy reliance placed on the case of Babalola vs. State, by the Learned Appellants’ Counsel is without foundation as the Court did not decide that once a document tells ties about itself it becomes a forged document, Issues 1, 2, and 3 are therefore resolved against the Appellants.
The next issue to be considered is whether the swearing of DW3 who was on subpoena duces tecum and who made no written deposition was proper in law.
Learned Counsel for the Appellants submitted that the Tribunal was wrong in law when it held that the swearing in of the DW3 who was on subpoena duces tecum and without a written deposition was proper and it could be technical justice to disregard the evidence.
Learned Counsel submitted that DW3 represented the Director General (DG) of NYSC who was subpoenaed to tender some documents. He submitted that DW3 was on subpoena duces tecum and with no witness statement on oath. He relied on the case of Haske vs. Magaji (2009) ALL FWLR (PT 461) 887 at 902 and paragraph 41 (1) and (3) of the 1st Schedule to the Electoral Act to submit that DW3 testified without a written deposition and the Court was urged to discountenance his evidence.
Learned Senior Counsel for the 1st Respondent Ezechukwu SAN, acknowledged that the Rules of the Tribunal required witnesses to depose to their evidence in a written statement but submitted that the Tribunal was right in allowing DW3 who attended under subpoena duces tecum and testificadum to testify under oath, He submitted that DW 3 is an officer of NYSC and in his evidence he said he is a Deputy Director in charge of verification. He submitted that he is in a position either through personal knowledge or records of the organization to give evidence which he gave and answer questions regarding any document particularly Exhibit 16 dealing with the subject matter. He also submitted that the subpoena commanded him to attend to give evidence and tender documents and that there is nothing on the face of the order commanding him to depose to the facts he intended to give. He submitted that the witness is allowed to testify under the Evidence Act and that paragraph 41(3) of the 1st Schedule to the Electoral Act is a procedural law and cannot override the Evidence Act which is a statutory provision. Reliance was placed on the following cases; Audu v. INEC (No.2) (2010) 13 NWLR (Pt.1212) 456 at 512; Abubakar v. Yar’aduwa (2008) ALL FWLR (Pt.404) 1409 at 1450 or (2008) 4 NWLR (Pt.1078) 456 at 510, 511 and 512. He submitted that the subpoena issued to the NYSC was not only for the production of document but also for testimony of the producer to be taken and placed reliance on the case at Onyemelukew Vs. Alberto (2001) 26 WRN 140 at 144. Learned Counsel also argued that assuming the subpoena issued to DW3 was Duces Tecum, the Tribunal reserves the discretion to direct the witness to testify an oath, citing Amobi v. Amobi (1996- 1999) 5 SCJE 60 at 70 and 72. That the judgment of the Tribunal could only be disturbed where a miscarriage of Justice would be occasioned to the Appellants, relying on Anataogu vs. Iweka (1992-1996) SCJE 629 at 644 to 645. It is the view of Learned counsel that the case of Haske v. Magaji (2009) ALL FWLR (Pt.461) 887 at 892 is not applicable in the instant case because DW3 was sworn and cross examined by the Appellants.
In his own response, Learned Counsel for the 2nd to 4th Respondents Dr. chukwumaeze submitted that the subpoena of DW3 was duces tecum ad tesificandum, that is Exhibit ’17’ and it is clear on the face of it. He submitted that a party to an action who is complaining about a procedure must do so at the earliest opportunity before taking steps on the proceedings, citing paragraph 53 (1) and (2) of the schedule to the Electoral Act. That DW3 was fully cross examined by the Appellants and did not challenge Exhibit 16 in the cross examination which is an admission and he relied on the case of Omotola vs. State (2009) ALL FWLR (PT 464) 1490 at 1598, Akamode vs. Dino (2009) ALL FWLR (PT 471) 929 at 950.
The contention of the Appellants under this issue is that the Tribunal was wrong in law when it swore the DW3 and allowed him to testify without a written deposition before the Court.
DW3 was brought to Court by a subpoena duces tecum ad testificandum, see Exhibit 17. The power to issue subpoena addressed to a person wanted as a witness is vested in the Court in the exercise of its powers. The subpoena in short is an order of the Court. It may be for the person to attend the Court and testify only, in which case it is known as subpoena ad testificandum or for the witness to produce documents in his possession or control which is referred to as subpoena duces tecum or for the witness to testify and to also produce document. Subpoena duces tecum ad testificandum.
Exhibit 17 is a subpoena decus tecum ad testificandum and which means is subpoena from the Court requiring the witness to come and produce document and to also testify. In the instant case, as clearly stated in the body of the subpoena, the witness is required to give evidence on behalf of the 1st Respondent and to produce the documents listed there under. It is trite that once a person is served with a subpoena, he is bound to attend before the Court notwithstanding any objection in law there may be to his giving the evidence or producing the document required.
Paragraph 41 (1) of the 1st schedule to the Electoral Act provides that subject to any statutory provision or any provision of these paragraphs relating to evidence, any fact required to the proved at the hearing of a petition shall be proved by written deposition and oral examination of witnesses in Court. Paragraph 41(1) of the 1st Schedule is made subject to any statutory provision which include the Evidence Act 2011, DW3 was commanded to come to Court under subpoena Exhibit 17 to give evidence and to produce documents and the Evidence Act allowed him to testify. A person summoned with subpoena ad testificandum is one summoned to testify and will therefore be required to go into the witness box and testify on oath or affirmation. However, if DW3 was summoned with a subpoena Decus Tecum, he was only required to produce the document in his possession or under his control and he does not thereby become a witness and need not become a witness and need not go into the witness box and sworn and cannot be cross examined. See Onyemelukwe v. Alberto (2001) 26 WRN 140 at 144.
In the instant appeal, the Appellants duly cross examined the DW3 when he testified and they have not shown how the evidence of DW3 whom they cross examined occasioned miscarriage of justice. See Anataogu vs. Iweka (1992- 1996) SCJF 629 at 644. The Appellants have failed to show how a miscarriage of justice was occasioned by the evidence of DW3. This issue is resolved against the Appellants.
The Appellants issues five and six will be considered together.
Learned Counsel for the Appellants Mr. Nwufo, Esq submitted that the Tribunal was wrong in law when it held that Exhibit ’15’ the NYSC discharged certificate of the 1st Respondent was not forged having regard to the fact that Exhibit “16” withdrew Exhibit B, a letter from NYSC to the Chairman Ezinihitte Mbaise dated 22/3/2011 and for the failure of the Appellants to cross-examine DW3 on the details of the emergent facts mentioned in Exhibit ’16’. Learned Counsel submitted that Exhibit B clearly stated ex facie that the NYSC Certificate of the 1st Respondent (Exhibit ’15’) was forged and that the particulars of the forgery are stated on Exhibit 8, Learned Counsel submitted that Exhibit ’16’ simply stated that the NYSC Certificate was no longer a forgery owning to some emergent facts which were not stated in the said Exhibit’16’. He submitted that the purported emergent facts were not pleaded by the 1st Respondent. Learned Counsel submitted that cross examining the DW3 on Exhibit 16 to show the particulars of the emergent facts will go to no issue as those emergent facts were not pleaded. He submitted that a person on subpoena duces tecum and without a written statement on oath is not a witness and cannot be cross examined as was held in Haske v. Magaji (2009) ALL FWLR (Pt.461) 887 at 902. The following cases were also cited; UBN Plc vs. Sparkling Breweries Ltd (1997) NWLR (PT 491) 29- at 51; and Honika vs. Holt (1994) 2 SCNJ 86 at 106.
It is also the submission of the Learned Counsel that the so called emergent facts which make Exhibit ’15’ not a forgery are not specifically stated ex facie Exhibit ’16’ and that the Court cannot embark on a voyage or discovery or speculate on what the emergent facts were. He relied on the case of ACB Plc vs. Emostrade Ltd (2002) 4 SCNJ 219 at 307 to 308. Learned Counsel thus submitted that Exhibit ‘B’ contains facts glaringly showing that the said Exhibit ’15’ is a forgery, That Exhibit ‘B’ is corroborated at page 55 of Exhibit ‘1’ the convocation brochure of ABSU. On corroboration of Evidence, Learned Counsel referred to the case of Kabiachi and Ors vs. The State (1975) LPELR-SC 299/74 at 16. Learned Counsel submitted that Exhibit ‘B’ stated the true and uncontroverted call up code of ABSU, the person of Anokwu Chika as the authentic owner of NYSC Call-Up No. AUU/95/00211 which was cloned to AUJ/95/2011 and that this is corroborated at page 55 of Exhibit ‘1’ where Chika Anokwu is listed as No. 4, a genuine Second Class Honours (Lower Division) graduate in Accountancy, exactly as claimed by the 1st Respondent. Learned Counsel urge the Court to disbelieve Exhibit ’16’ and to rely on Exhibit ‘B’ to hold that the 1st Respondent’s NYSC certificate is a forgery.
On Issue 6, Learned Counsel for the Appellants Nwufo Esq. submitted the Tribunal was wrong when they held that the NYSC certificate is not envisaged in Section 66(1)(h) of the 1999 Constitution. Learned Counsel submitted that the provision of Section 66(1)(h) of the Constitution did not mention types of forged certificates that can disqualify a candidate and the Tribunal in holding that an NYSC Certificate is not envisaged by Section 66(1)(h) is inapplicable. It is also submitted that the Electoral Act 2010 as amended also made presentation of false Certificate by a Candidate, a disqualifying factor. It is further submitted that the presentation of the said Exhibit 15 by the 1st Respondent to the 2nd Respondent, a forged certificate renders him not qualified to contest the election.
The Court was urged to resolve this issue in favour of the Appellants.
In his response, the Learned Senior Counsel for the 1st Respondent submitted that the Tribunal was right when it held that the NYSC Certificate presented to INEC was not forged. Learned Counsel submitted that Exhibit 8 which the Appellants heavily rely on was withdrawn in Exhibit 16 and the effect of such withdrawal is to nullify the conclusion earlier reached in the said Exhibit 8. He relied on the authority of Uzodima vs. Izunasg (2011) 17 NWLR (Pt.1275) 30 at 64. He thus submitted that if the Appellants needed further explanation on what constitutes emerging facts, they had the opportunity of cross-examining DW3, an official of NYSC whom they did not cross examine on emerging facts. It is also submitted that the failure to challenge evidence by cross examination is that the adverse party is deemed to have conceded the issue relying on Odo vs. COP Plc. (2005) 24 WRN 140 at 146. Learned Counsel thus submitted that Exhibit ’16’ which is a later document than Exhibit ‘8’ completely wipes out any doubt about the authenticity or genuineness of Exhibit 16 and the Court was urged to so hold.
On Issue 6, Learned Senior Counsel submitted that in the interpretation of Statutes, when a section is made subject to the preceding one, like in the instant case, Section 66(1)(h) is made subject to Section 65 of this Constitution means that Section 65 will always guide or dictate the coloration of paragraph 66.
Learned Counsel referred to the case Tukur v. Govt. Of Gongola State (2012) All FWLR (pt. 655) 287 at 334 on the connotation of “Subject to”. He thus submitted that the Tribunal was right in taking Sections 65 and 66 in arriving at its interpretation that the NYSC discharge certificate is not one of the types of Certificates envisaged or contemplated by Section 66(1)(h) of the 1999 Constitution. He submitted that this position is supported by the cases of Nwabueze v. NIPOST (2006) 8 NWLR (Pt.983) 480 at 499; and Ogbeide v. Osula (2004) 12 NWLR (Pt.886) 86 at 108 – 109. Learned Counsel urged the Court to adopt its decision in Ogbeide’s case and affirm its interpretation of Section 66(1)(h) of the 1999 Constitution as amended to hold that the NYSC certificate is not an educational qualification and therefore not the type of certificate contemplated by Section 66(1)(h) of the 1999 Constitution as amended.
On his part, Learned Counsel for the 2nd to 4th Respondents Dr. Chukwumaeze Esq. submitted on issue 5 that the Appellants did not challenge Exhibit 16 in cross-examination and is therefore too late to complain. He submitted that failure to cross-examine an issue is an admission. He relied on the cases of Imotola v. State (2009) All FWLR (Pt.464) 1490 at 1598; Akamode v. Dina (2009) All FWLR (Pt.471) 929 at 950
On Issue 6, Learned Counsel submitted that no superior argument is canvassed by the Appellants and urged the Court to affirm the decision of the Tribunal that NYSC Certificate is not envisaged in Section 66(1)(h) of the 1999 Constitution.
In his response, Learned Counsel for the Appellants submitted that even if DW3 was cross-examined to give the particulars of the emergent facts, it would still have gone to no Issue and inadmissible because the particulars were not stated ex facie the letter and were not pleaded and DW3 was not the maker and that reliance on the case of Odo vs. OOP Plc. (2005) 24 WRN 140 – 141 is misconceived.
On the issue of Sections 65 and 66(1)(h) of the 1999 Constitution, Learned Counsel submitted that it is the provision of Section 65 that is made subject to section 66 and not vise-versa, and thus submitted that reliance on the cases of Tukur v. Govt. of Gongola State (supra); Nwabueze v. NIPOST (supra) and Ogbeide vs. Osula (supra) in submitting that Section 66 of the Constitution is made subject to the provision of Section 65 are grossly inapplicable.
The contention of the Appellants on Issue 5 is that Exhibit ‘8’ clearly stated that the NYSC Certificate of the 1st Respondent, Exhibit 15 was forged and that the Tribunal was wrong in holding that the said certificate was not forged because Exhibit 16 did not sufficiently give reasons for withdrawing Exhibit ‘B’ other than ’emergent facts.
The Appellants relied heavily on Exhibit ‘B’ being a letter dated 27/3/2011 written by one Mr. A.C. Oni disowning the NYSC certificate of the 1st Respondent that it was a forged certificate. By a letter dated and admitted as Exhibit ’16’ through DW3, the NYSC wrote in respect of the questioned NYSC certificate that it emanated from the NYSC and affirmed the authenticity of the NYSC certificate issued to the 1st Respondent which has service No. A373918 with call-up No. LA/AUJ/95/00211, and withdrew Exhibit ‘8’ heavily relied upon by the Appellants.
Another contention of the Appellants against Exhibit 16 is that the said Exhibit did not sufficiently give reason for withdrawing the said Exhibit ‘8’ other than ’emergent facts’.
It is my candid view that if the Appellants feel that they needed a further explanation on what constitute the ’emergent facts’ they had the opportunity of cross-examining DW3 an official of the NYSC who testified on Subpoena on the issue of the ’emergent facts’ The Appellants failed to take advantage of the opportunity of getting the particulars of the ’emergent facts’ from DW3. The argument canvassed by the Appellants that cross examination of the witness by the Appellants can only elicit answers not pleaded cannot be further from truth.
One characteristic feature of cross examination is to shake and diminish the credibility of the witness if he fails to offer credible explanation or answers. The law is very clear; failure to cross examine on an Issue is an admission. A party who wishes to show that the evidence given by the opposing party should be disregarded or disbelieved has the duty to demonstrate this by cross examination. See Omotola v. State (2009) All FWLR (Pt. 464) 1490; and Akamode v. Dino (2009) All FWLR (Pt. 471) 929.
I therefore hold that the finding of the Tribunal that the NYSC discharge certificate of the 1st Respondent Exhibit 15 presented to the 2nd Respondent was not forged, Exhibit 15 was later in time and it is trite that where two documents deal on the same issue, the later in time supersedes the earlier one. See Uzodima v. Izunaso (2011) 17 NWLR (pt.1275) 30. It is immaterial that Exhibit ’16’ did not give particulars of the ’emergent facts as contended by the Appellants. It therefore resolve this issue against the Appellants.
Learned Counsel for the Appellants argued on issue 6 that the Tribunal was wrong when it held that the NYSC Certificate is not envisaged by Section 66(i) (h) of the 1999 Constitution as amended.
Section 65 of the 1999 Constitution states:
65(1) Subject to the provisions of Section 66 of this Constitution, a person shall be qualified for election as a member of:
(a) the Senate, if he is a citizen of Nigeria and has attained the age of thirty-five years; and
(b) the House of Representatives, if he is a citizen of Nigeria and has attained the age of Thirty years
(2) A person shall be qualified for election under sub-section (1) of this section if:
(a) he has been educated up to at least school certificate level or it equivalent
(b) he is a member of a political party and is sponsored by that Party.
Section 66 (i) (h) Provides thus:
66 (i) No person shall be qualified for election to the senate or the House Representative if:
(h) he has presented a forged certificate to the Independent National Electoral Commission.
It is as clear as crystal that from the provisions of Sections 65 and 66 of the 1999 Constitution as reproduced above, that Section 66 is not made subject to Section 65 of the said Constitution. Rather, it is Section 65 that is made subject to the said Section 66, While Section 65 deals with educational qualification for election. Section 66 generally deals with disqualification for election on presenting a forged certificate to Independent National Electoral Commission. Sub paragraph (h) did not classify the type of forged certificate that can disqualify a candidate. The Tribunal therefore cannot be right in its finding that the NYSC certificate is not envisage in Section 66 (i) (h) of the 1999 Constitution. The case of Ogbade vs. Osula (2004) 12 NWLR (PT 886) 86 at 108 to 109 is clearly distinguishable with the facts and circumstances of this case. I am therefore of the firm view that NYSC Certificate is one of the forged certificates envisaged by Section 66(i) (h) of the 1999 Constitution which if presented to INEC will disqualify a candidate in an election. This issue is resolved in favour of the Appellants against the Respondents.
Issue No. 7 deals with whether the Tribunal was right when it held that the election of 25/2/2012 was properly held within three months after finding as a fact and holding that the said election was conducted in breach of the order of the Court of Appeal made in Appeal No. CA/OW/EPT/45/2011 on the 25th day of November, 2011.
The Appellants contended that the Tribunal was wrong to hold that the election was properly conducted within three months after finding that the election was held in breach of the order of the Court of Appeal No. CA/OW/EPT/45/2011 made on the 25th day of November, 2011 when there was no extension of time of the period of 90 days allowed, nor the order stayed or set aside. It is submitted that what the Tribunal did, tantamounts to sitting on appeal on the judgment of this Court, while the said judgment is binding on the Tribunal until set aside.
Learned Senior Counsel for the 1st Respondent submitted that the Tribunal was right when it held that the fresh election conducted on the 25/2/2011 was conducted within 3 months stipulated by paragraph 28 (3) of the 1st schedule to the Electoral Act 2010 as amended and that even if there was no compliance with the Electoral Act, the Appellants did not prove how the non compliance affected the result of the election.
Learned Counsel submitted that in arriving at its decision, that the election was held within 3 months, the Tribunal relied on the cases of Adefemi v. Abegunde (2004) ALL FWLR (Pt.203) 2109 at 2127; Akeredolu v. Akinroni (1985) 2 NWLR (Pt.10) 787; Chime v. A.G. Federation (2008) ALL FWLR (Pt.439) 550 at 567. It is submitted that going through the principles laid down by the Supreme Court in the cases cited (supra), the calculation of the 3 months requirement would be as correctly held by the Tribunal.
Learned Counsel also submitted that even if the Tribunal was wrong, the Appellants have not shown that the non-compliance substantially affected the result of the election. No evidence was led by the Appellants to establish non compliance which occasioned a grave injustice to the Appellants. It is also submitted that pleadings not supported by evidence is deemed abandoned citing the case of Chukwuma vs. Shell Petroleum (1993) 4 NWLR (PT 289 512.
It is also submitted that no voter was called to show how he did not vote because he thought the election will no longer hold and relied on Buhari vs. Obasanjo (2005) 13 NWLR (Pt.941) 1 at 191. In any case that an election petition can only be premised on an in-fraction of the Constitution and Electoral Act 2010 and not non compliance with the consequential order of court.
On their own part, Learned Counsel for the 2nd – 4th Respondent’s Counsel referred to section 138 (1) of the Electoral Act 2010 as amended, the grounds on which an election can be questioned to submit that the grounds are exclusive and no other ground no matter how cogent in law is capable of being a ground of questioning an election and that paragraph 8 (d) of the petition is not a ground for questioning an election. It is his view that failure to comply with the order of court by INEC is simply contempt of court, the consequence of which should not lead to nullification of the election. Reliance was placed on Emerenini v. Osuagwu & Ors (1999) 4 NWLR (Pt. 598) 221 at 228. It is submitted that the disobedience to court order cannot be held to disqualify a person from contesting an election nor is it a disqualifying factor as listed in section 66 of the 1999 constitution. Learned counsel also referred to section 139 (1) of the Electoral Act, 2010 as amended that an election cannot be invalidated by reason of non compliance where it is conducted substantially in accordance with the Electoral Act and the petitioner must show such non compliance by evidence, relying on the cases of Chima vs. Ezea (2009) ALL FWLR (Pt. 470) 660 at 725; Ali Ucha v. Elechi (2012) MRSCJ (Vol. 11) 79 at 98. It is submitted that the Appellants did not call any witness to testify that they were misled by the change in date.
Mr, Nwufo, Esq for the Appellants submitted that the Appellants are not required to show that they suffered any miscarriage of justice for failing to conduct the said election as ordered by the Court, that the conduct of election is sacrosanct and admits of no excuse.
I have considered the submissions of Learned Counsel on this issue. The Tribunal found at page 787 of the Record of Appeal as follows:
“We are here concerned with the holding of an entirely fresh election for the entire constituency.
From all that we have said above, our conclusion is that the election held on the 25th February, 2012 was held in breach of the order of the court of appeal made on the 25th November, 2011.
The Tribunal after this finding also went ahead to hold that the election was held within 90 days of the order of the court made on the 25th November, 2011. This is far from the truth.
The Court ordered that fresh Election be conducted by INEC within 90 days of the date of its decision pursuant to Section 28(3) of the 1st schedule to the Electoral Act. The election which would have been conducted on the 23rd February, 2012 was conducted on the 25/2/20012.
The question that may be asked is what is the legal consequences of the holding of the said election in breach of the order of the Court made on the 25th day of September, 2011?
Section 28(3) of the 1st schedule to the Electoral Act provides that:
“where a new election is to be held under the provisions of this paragraph, the commission shall appoint a date for the election which shall not be later than 3 months from the date of the determination.”
Though, subparagraph (3) of the said section 28 is mandatory, it does not carry with it sanction for breach. It therefore presupposes that the provision is not mandatory such that a breach would attract any sanction or void any election conducted in breach of the said provision. See Emerenini vs. Osuagwu (supra) and Ali Ucha v. Martins Elechi (supra). The breach is at best contempt of Court, It is not a ground for nullifying an election under Section 138(1) of the Election Act, 2010 as amended.
In any case, no evidence was led by the Appellants to establish non compliance which occasioned a grave injustice as no voter was called to show how he did not vote because the election will no longer hold. This issue is also resolved against the Appellants.
In arguing issue 8, Mr. Nwufo, Esq for the Appellants submitted that the Tribunal was wrong when they held that Exhibit 1 was not a conclusive proof of names of graduating students of the ABSU for 1994, that rather it was the Register kept by the University aforesaid pursuant to section 24 of the ABSU Law. He argued that both DW4 and DW5 confirmed that Exhibit 1 contains the name of the graduating students for 1994 and that the name of the 1st Respondent was not contained in Exhibit 1 and submitted that the Register mentioned in Section 24 of ABSU Law is not the Register of graduating students but a body of officers of the university known as “convocation” as opposed to the convocation of graduating students. We were urged to so hold and resolve this issue in favour of the Appellants.
I have considered the submissions of Learned Counsel and I am of the firm view that Exhibit L, the brochure for the convocation ceremony of Abia state University, Uturu 1996 is not conclusive proof of the names of graduating students of ABSU for 1994. The Register kept by the university of its graduating students is not the Registrar envisaged by Section 24 of the ABSU Law provides as follows:
“24 (1) A person shall be entitled to have his name registered as member of convocation if:
(a) he is either a graduate of the University or a person satisfying such requirements as may be prescribed for the purpose of this Section and
(b) he applies for the registration of his name in the Prescribed manner.”
I am here inclined to agree with the submission of Learned Counsel for the Appellants that section 24 of the ABSU Law as reproduced is not the register of graduating students but a body of officers of the University known as “Convocation” as opposed to the convocation of graduating students. See also section 23 of ABSU Law that notwithstanding, Exhibit 1 is not a conclusive proof of names of graduating students. The University must have a Register for all its graduating students. Unless such is produced before the Tribunal to substantiate the allegation that the 1st Respondent is not a graduate of the University, nothing short of the Register can substantiate the allegation that the 1st Respondent was not a graduate of the University of ABSU, I so hold. Consequently, this issue is also resolved against the Appellants.
Based on the foregoing, the omission of the name of the 1st Respondent on Exhibit ‘1’ cannot be conclusive proof that he was not a graduate of the University. I am also of the firm view that the decision of the Tribunal is not against the weight of evidence.
On the whole therefore, notwithstanding the resolution of issue 6 in favour of the Appellants, this appeal fails as it is without merit. It is hereby dismissed. The judgment of the Tribunal delivered on the 22nd day of August, 2012 affirming the declaration and return of the 1st Respondent as the winner of the election held on the 25th February, 2012 into Ahiazu/Ezinihitte Mbaise Federal Constituency in the Federal House of Representatives is hereby affirmed.
Parties to bear their own costs.
MOJEED A. OWOADE, J.C.A.: I had the privilege of reading in draft the judgment of my learned brother UWANI ABBA AJI, JCA. I agree with the reasoning and conclusion and I also dismiss the appeal.
It is important to re-echo the leading judgment in stating that the fact that the 1st Respondent’s certificate exhibit 9, 19 or 21 issued by the Abia Sate University was signed on a date other than the date appearing on the face of the certificate does not mean that the 1st Respondent presented a forged certificate to the 2nd Respondent under Section 66 (1)(h)(i) of the 1999 Constitution (as amended).
Truly and as pointed out in the leading judgment every fraudulent making or alteration of a document is a forgery but not every forgery is fraudulent. Thus, the word ‘forgery’ has grammatical meaning which is different from its legal connotation of fraud.
The intention of the constitutional provision in Section 66 (i) (h) is to disqualify fraudulent people from contesting for elections under the provisions of Section 65 of the Constitution. The provision is not to prevent those who presented documents that contain “errors or lies” on their faces not due to their making or to any fraudulent intention. For these reason and the fuller reasons contained in the judgment of my learned brother Uwani Abba Aji, JCA. I also dismiss the appeal.
HARUNA M. TSAMMANI, J.C.A.: I agree.
Appearances
K. C. Nwufo, Esq. with M. I. Njoku, EsqFor Appellant
AND
Ikechukwu Ezechukwu, SAN, with chief Okey Ehieze, Esq, K, K, Eleja, Esq., B. I.
Ojimadu, Esq., Ogechi Ogbinna, Esq. and E. C. Odunze, Esq for the 1st Respondent,
Dr. U. U. Chukwumaeze, Esq. with L. C. Onumajuru, Esq’ for the 2nd 4th Respondents.For Respondent
