HON. HASSAN ANTHONY SALEH v. CHRISTIAN ADABAH ABAH & ORS(2017)

HON. HASSAN ANTHONY SALEH v. CHRISTIAN ADABAH ABAH & ORS

In The Supreme Court of Nigeria

On Friday, the 10th day of March, 2017

SC.144/2016

RATIO

WHETHER SERVICE OF COURT PROCESS ON COUNSEL FOR A PARTY IS EFFECTIVE AND COMPETENT SERVICE

With regards to the first and main plank of the Respondents’ Preliminary Objection, we are of the emphatic opinion that since the Counsel to the respondents was served and he did not deny such service, there is effective and competent service. The contention that the Respondents should have been served personally is misplaced. Service on the Counsel, S.I. Ameh, SAN, being the legally and formally acknowledged representative of the Respondents, is good, competent and effective enough. Both Respondents were duly served via their counsel, who so hold. The real essence of the Supreme Court Rules on Notice (which is to prevent any part being taken by surprise which in a significant way amounts to denial of adequate opportunity to be heard) is achieved as both first and second Respondents were actually (and more then constructively) served via Counsel. And there is no dispute as to this state of affairs. Any assumed irregularity is only as to form, rather than substance. Any seeming irregularity does not bear on our jurisdiction and does not amount, by any definition, to denial of notice to the Respondents. PER SIDI DAUDA BAGE, J.S.C.

EFFECT OF A GROUND OF APPEAL DIRECTED AT AN OBITER DICTUM OR THE RATIO

By the first leg of this third arm (or aspect of Preliminary Objection, it meant that since it is trite law an obiter dictum cannot be a basis of a ground of appeal (as correctly held in the judicial decision cited in Sub-paragraph 3.2, sub-heading 12 of the Respondents’ Brief of Argument), Grounds 6 and 9 should therefore be discountenanced and struck out as Grounds of appeal. PER SIDI DAUDA BAGE, J.S.C.

INTERPRETATION OF THE PROVISIONS OF SECTION 66(1)(I) OF THE 1999 CONSTITUTION (AS AMENDED) AS TO THE CONSEQUENCE OF THE PRESENTATION OF A FORGED CERTIFICATE ON A CANDIDATE

From the totality of the facts of this appeal, forgery of certificate by the 1st Respondent to contest Ado, Okopwu and Ogbadibo Federal Constituency of Benue State keeps resonating. The 1st Respondent presented forged certificate to the 3rd Respondent in the run up to the 2011 election and when it was time for the 2015 general election he carefully and deliberately omitted to include this fact. The relevant question is whether the 1st Respondent ever presented a forged certificate to INEC (3rd Respondent) at any (previous or current) elections, and not whether or not it was listed or omitted from the declaration form completed for a particular election. The second legal is that there must have been a judicial pronouncement, by a Court or Tribunal, that the certificate in question is forged. In this appeal, an Election Tribunal with specific jurisdiction has found, in the judgment of National/State House of Assembly Election Tribunal for Makurdi, Benue State delivered on 6/9/2011 at pages 57 & 58, that the certificate presented by the 1st Respondent is forged. And this, as the trial Court rightly found, is conclusive on this issue. The provisions of the Nigerian Constitution are unambiguous. The Constitution expressly provides that: “66. (1) No person shall be qualified for election to the Senate or the House of Representatives if: (ii) he has presented a forged certificate to the Independent National Electoral Commission.” The intention of the Constitution is that any one who had presented a forged certificate to INEC should stand automatically disqualified for all future elections if, as in this case, a Court or tribunal finds the certificate to have been forged, and it matters not whether or not such facts is further fraudulently or desperately concealed in subsequent elections or declaration forms. No decent system or polity should condone, or through judicial policy and decisions, encourage the dangerous culture of forging certificates with impunity to seek electoral contest.? The 1st Respondent ought not to have, and the opinion of the law, was not qualified to contest election into the Ado, Okopwu and Ogbadibo Federal Constituency of Benue State based on the combined effects of the provisions of Section 66(1)( i) of the 1999 Constitution (as amended) and Section 31 (2), (5) and (6) of the Electoral Act 2010 (as amended). He stands constitutionally disqualified. This being a pre-election matter, we agree with the trial Court that votes polled by the 1st Respondent through nomination by the 2nd Respondent are invalid and wasted. The Appellant being the runner up in the PDP Primary election conducted for the said election automatically steps into his shoes as nominee and winner of the election into the Ado, Okopwu and Ogbadibo Federal Constituency of Benue State. It is our considered view that the provision of Section 141 of the Electoral Act only applies in cases of post-election cases at the Election Tribunal as against pre-election matters. To hold otherwise would mean allowing ineligible persons to contest and win an election and thus deploy dilatory tactics to reap from his or her fraud to the fullest until the expiration of the tenure procured by fraud. Due to the foregoing reasons, issue two is also resolved in favour of the Appellants. The judgment of the Court below is hereby set aside. The advisory opinion of the learned trial judge is instructive in this regard, and we quote: “The culture of impunity exhibited by the 1st and 3rd Defendant’s continued unabated with 2nd Defendant, INEC declaring 3rd Defendant not only eligible but the winner of the said general elections 2015 (sic) and returned him unopposed as the Honorable member for the said Federal constituency on the platform of 1st Defendant, PDP, as other registered Political parties fielded no candidates at the general election 2015. The era of political parties presenting candidates holding public offices at Local, State and National levels with forged certificates which still persists in the polity needs to be addressed urgently by relevant law enforcement agencies and other stakeholders (and we add-including Courts) in this nascent democracy (Emphasis ours).” This Court must take the lead, in righting the wrongs in our society, if and when the opportunity presents itself as in this appeal. Allowing criminality and certificate forgery to continue to percolate into the streams, waters and oceans of our national polity would only mean our waters are and will remain dangerously contaminated. The purification efforts must start now, and be sustained as we seek, as a nation, to now ‘change’ from our old culture of reckless impunity. The Nigerian Constitution is supreme. It desires that no one who had ever presented forged certificate to INEC should contest election into Nigeria’s National Assembly. This is clear and sacrosanct. More compelling as a judicial determination had been taken by no less a technical panel sitting in, at least, a panel of three judges as Election Tribunal with constitutional mandate to determine such issues as they relate to elections and its outcomes, including eligibility. This has also been affirmed by the trial Court in this appeal. On these issues, our duty is to apply the Constitution and the law in its start, original form undiluted by ‘colourated’ interpretations. PER SIDI DAUDA BAGE, J.S.C.

JUSTICES

MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria

CLARA BATA OGUNBIYI Justice of The Supreme Court of Nigeria

CHIMA CENTUS NWEZE Justice of The Supreme Court of Nigeria

AMINA ADAMU AUGIE Justice of The Supreme Court of Nigeria

SIDI DAUDA BAGE Justice of The Supreme Court of Nigeria

Between

HON. HASSAN ANTHONY SALEH Appellant(s)

AND

CHRISTIAN ADABAH ABAH
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)

SIDI DAUDA BAGE, J.S.C. (Delivering the Leading Judgment): This is an appeal from the Judgment of the Court of Appeal, Abuja Judicial Division, delivered on the 8th of February, 2016, The Court of Appeal sat over the Judgment of Federal High Court Abuja, in a Pre-Election cause. The Federal High Court Abuja, as the trial Court, had passed judgment in favour of the Appellant (who was the Plaintiff there). The Respondents (who were the Defendants at the trial Court felt aggrieved by the Federal High Court decision. They went on appeal to the Court of Appeal given its status as the penultimate Court in the country Judicial hierarchy. The Court of Appeal partially reversed the decision of the trial Court. This in effect, means the respondents before this Court were partially successful at the Court of Appeal (where they were the Appellants). Their appeal there, was partially (but crucially) granted. The pendulum swung again. Hon. Hassan Anthony Saleh, as the Respondent at the Court of Appeal was dissatisfied and aggrieved by the reversal of his trial Court fortune by the Court of Appeal. He therefore, proceeded to this Court being the apex

and ultimate Court in the country thereby making him the Appellant before us.

The Appellant and the first Respondent are respective members of the second Respondent, the Peoples Democratic Party (PDP). The Appellant and first Respondent participated in the primary Election conducted by the second Respondent prior to the 2011 General Election into the House of Representatives. They contested against each other for the seat of Ado, Okpokwa and Ogbadigbo Federal Constituency of Benue State (herein after simply referred to as the disputed constituency”. The first respondent withdrew from the race after he had defeated the Appellant.

In the relevant INEC form, he had answered No to the question of if he had ever presented any forged certificate to the Electoral Body (i.e the INEC). On this development, the Appellant sought that the first Respondent be disqualified and in the latters stead (Appellants) be substituted. The Peoples Democratic Party (PDP) leadership and INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) declined to do so. This prompted the Appellants to file a suit via originating summons at the Court of

first instance. The Federal High Court, adjudged the suit in favour of the Appellant. The first and second Respondents who were the Defendants there appealed to the Court of Appeal and succeeded; wherewith the Appellant (who was the Respondent at the penultimate Court) appealed to this Court.

The above is considered a fair condensation and/or compact of the case at hand. In accordance with the Rules of this Court, parties exchanged and served Briefs of arguments.

The Appellants Brief filed on the 21st March, 2016 was settled by Dr. Alex A. Izinyon, SAN and company. The Reply Brief which was filed on the 6th of October, 2016 was on behalf of only the first and second Respondents. It was filed and settled by S.I. Ameh, SAN and company. It needs be repeated that the third Respondent (INEC) filed no Brief.

The Notice of Appeal filed before this Court sets out Nine (9) Grounds of Appeal with each of the Grounds being supported by a number of particulars elucidating and supporting the respective Grounds. See Exhibit “O” on pages 2-16 of the Notice of Appeal. Three (3) interrelated and integrated forms of Relief are being requested by the

Appellant. See Exhibit O – the Notice of Appeal on page 16. For the avoidance of doubt, the Reliefs being sought from this Court are collapsed in a request for “AN ORDER of this Honourable Court allowing this appeal, set aside the decision of the Court of Appeal and affirm the decision of the trial Court.”

The learned Counsel for the Appellant proposed eight (8) issues for determination in his Brief:-
“1. Whether the Court below was right in law to have held that the 1st Respondent must have been charged, tried and convicted of forgery by a competent Court of law for the 1st Respondent to be liable for presentation of forged certificate to INEC under Section 66(1)(i) of the 1999 Constitution (as amended) and making of false declaration on oath under Section 31(2)(5) and (6) of the Electoral Act, 2010 (as amended), (Encompassing Grounds 1 and 5 of the Notice of Appeal).
2. Whether the decision of the Court below not to rely on the National Diploma Certificate in Accountancy presented by the 1st Respondent to INEC before 2011, in determining the issue of presentation of forged certificate to INEC before it because the 1st Respondent did not

include the said National Diploma Certificate in his INEC Form CF001for 2015 General Election and therefore the 1st Respondent could not be said to have committed forgery, is not wrong in law in view of the provisions of Section 66(1)(i) of the 1999 Constitution (as amended) and the question in Paragraph 6 of Part E of INEC Form CF001for the 2015 General Election
(Encompassing Ground 2 of the Notice of Appeal).
3. Whether in view of the nature of the case before it, the Court below was right in law when it held that to prove that 1st Respondent lied on oath when he stated that he never presented forged certificate in INEC, it must be shown that the 1st Respondent presented the said forged certificate with the knowledge that it would be used fraudulently or dishonestly as genuine, and resuming of the Court below was right in its said decision, the Appellant did not prove beyond reasonable doubt that the 1st Respondent presented a forged certificate with the knowledge that it would be used fraudulently or dishonestly) as genuine, (Encompassing Ground 3 of the Notice of Appeal).
4. Whether the Court below was right in law when it held that

Exhibit T which is the Judgment of the National/State House of Assembly Election Tribunal which made a finding that the 1st Respondent presented a forged certificate to INEC, could not be relied upon because the 1st Respondent was not a party in the election petition where the said Judgment emanated from, when the 2nd and 3rd Respondents, herein were parties in the said election petition.
(Encompassing Ground 1 of the Notice of Appeal).
5. Whether the Court below was right in law to have held that the 1st Respondent’s form CF001 has satisfied the constitutional requirements in Section 65(1) and (2) when the Appellant’s case at the trial Court and the issue before the Court below was not predicated on the said Section 65(1) and (2) for the 1999 Constitution (as amended).
(Encompassing Ground 6 of the Notice of Appeal).
6. Whether the Court below was right in law to have held that the 1st and 2nd Respondents’ paragraph 5.2(q) of their counter-affidavit, against appellant’s Originating Summons was unchallenged when the said paragraph 5.2(q) did not raise any fresh issue to warrant the Appellant filing a Reply or a Further and

Better Affidavit. (Encompassing Ground 7 of the Notice of Appeal).
7. Whether the Court below decision that the 1st Respondent was duly nominated and sponsored by the 2nd Respondent and consequently was qualified to contest in the 2015 General Election was not wrong in law. (Encompassing Ground 8 of the Notice of Appeal).
8. Whether the Court below was not wrong in law to have on the basis of Section 141 of the Electoral Act, 2010 (as amended) held that it was wrong for the trial Court to have adjudged the Appellant the winner of the election and ordered that he be issued a certificate of return when the Court below that held that the said Section 141 of the Electoral Act was only applicable to and directed at Election Tribunal and Court of Appeal exercising its first instance jurisdiction in the hearing and determination of election petition and not at regular Courts. (Encompassing Ground 9 of the Notice of Appeal).”

On their own part, the first and second Respondents Brief proposes and advances five (5) issues for determination of the appeal:-
“1. Whether in the absence of proof of any charge, trial and or conviction of the 1st

Respondent for forgery as well as absence of proof of intent to use a forged document fraudulently or dishonestly as genuine, the 1st Respondent could be said to have presented forged certificate to the 3rd Respondent. (Grounds 1, 3 and 5 of the Notice of Appeal).
2. Whether the Court below could be faulted for rejecting Appellant’s reliance on National Diploma Certificate in Accountancy which he claimed the 1st Respondent presented to the 3rd Respondent in 2011 when no such diploma was included in the 1st Respondents INEC Form CF001 for the 2015 general election and in view of Paragraph 5.2(q) of the 1st and 2nd Respondent’s Counter-Affidavit. (Grounds 2 and 7 of the Notice of Appeal).
3. Whether the Court below rightly refused to rely on Exhibit T, adduced by the Appellant in his bid to establish his allegation of forgery against the 1st Respondent. (Ground 4 of the Notice of Appeal).
4. Whether the Court below was wrong in observing that the 1st Respondent’s INEC Form CF001 satisfied the constitutional requirements in Section 65 (1) and (2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). (Ground 6 of the

Notice of Appeal).
5. Whether the Court below was right in faulting the trial Courts endorsement of the Appellant as winner of the 2015 general election and in finding instead that the 1st Respondent was the duly nominated and sponsored candidate of the 2nd Respondent and qualified to contest the general election. (Ground 8 and 9 of the Notice of Appeal).

See Sub-paragraph 4.0, pages 13 and 14 (with legal arguments on the issues running from page 7 to 46 of Brief). It is utmostly crucial to add that the Respondents had filed a Notice of preliminary Objection and with Arguments supporting thereto. This Court proceeds to determine the Preliminary Objection.

DETERMINATION OF PRELIMINARY OBJECTION
There are three (3) dimensions of this Objection. Its first and main plank resides on the failure to provide an address of service on the first and second Respondents in the Notice of Appeal filed on 18/2/2016 AND the earlier Notice of Appeal filed 8/2/2016. Allied to this point of contention is yet the issue that the first and second Respondents were not served personally with these Notices. The Notices rather were put in the care (or charge) of

their common Counsel, S.I. Aneh, SAN and Company (Address provided). The said service is argued to have run foul of the relevant provisions of the Rules of this Court. The Rules were specified in the Brief. The Counsel did not deny service.

The second aspect or dimension of the Preliminary Objection is the plurality of the Notices (two of them) with the attendant ambiguity and difficulty such a state of affair presents as to which of the two Notices is to be relied upon.

amounts to denial of adequate opportunity to be heard) is achieved as both first and second Respondents were actually (and more then constructively) served via Counsel. And there is no dispute as to this state of affairs. Any assumed irregularity is only as to form, rather than substance. Any seeming irregularity does not bear on our jurisdiction and does not amount, by any definition, to denial of notice to the Respondents. The case of IHEDIOHA VS OKOROCHA (2016) 1 NWLR (Pt 1492) 147 at pages 176-179 and the host of other authorities were strongly referred to as their respective facts and circumstances are fundamentally distinguishable to present appeal case.

As to the plurality of the two Notices served within time, we tend to think the Preliminary Objection is misconceived. In fact, the idea of a plurality is a misnomer. The first and second Respondents via the instrumentality of their able Counsel had no difficultly in deciding which of the two Notices to rely on. They directed their energies to responding to the Notice of 18/2/2016 (and not the previous one of 8/2016) which had nine (9) Grounds and eight (8) issues for determination. The

Respondents Brief unambiguously responded to those Grounds and issues in the Notice of 18/2016. It was their articulate study of the 18/2/2016 Appellants Notice that gave birth to the Respondents own formulation of five (5) issues for determination. The failure of the Appellants Counsel to formally withdraw the Notice of 8/2/2016 (though improper and reckless) had amounted to a mere irregularly that does not bear on the Courts jurisdiction or the right to adequate notice.

The third aim (or dimension) of the Preliminary Objection has two legs of its own, viz/namely, that Grounds 6 and 9 of Appeal emanated Not arising from the Judgment of the Court below.

The second leg of the third aspect and dimension of the Preliminary Objection is specifically

on Ground 9 – the objection and contention is to the effect that the Ground did not arise from the judgment of the Court (i.e the Court of Appeal and that since the Ground has no relation to the Judgment being appealed against, it (the Ground) should be viewed as incompetent and be struck out. It is the emphatic contention of the Respondents counsel that the law is absolutely clear that grounds of appeal do not arise in nibbus (from the air) but must arise from or based on the judgment appealed against, failing which they will be incompetent and liable to bring struck-out. In support of this proposition, key judicial authorities were cited as for example the cases of IDIKA v. ERISI (1988) NWLR (Pt.18) 563 and ADEBIYI VS UMAR (2012) 9 NWLR (Pt. 1305) 279 at 286.

Here is our consideration of the Respondents counsels objection to Grounds 6 and 9 of the Appeal.. Though this third plank (or dimension) of the Objection has two faces of its own, their combined effect is the same, that is, that the two Grounds should be struck out on the basis that they do not relate to the judgment of the Court of Appeal (either on account of not being part of the ratio

or even that judgment at all).

After scrutinizing and/or evaluating four (4) different but relevant sources of information before us (namely the Brief of Argument of Counsel to the Respondents, the Appellant’s Counsels Reply to the former’s Brief, the judgment of the Court of Appeal as contained in the Record of proceedings and lastly, Section 141 of the Electoral Act, 2010, (as amended), we proceed to hold that whether the Court of Appeal (or the Court below) did or did not have recourse to Section 141 of the Electoral Act, 2010 (as amended) has no effect on the validity and tenability of Ground 9 as its content and substance flow from (and/or relate to) the Judgment of the lower Court. Simply put, Ground 9 remains a valid Ground together with Ground 6.

On the whole, the Preliminary Objection raised by Counsel to the first and second Respondents without any of its legs (together with sub-branches) to stand upon, accordingly, it is hereby struck-out. Effort will now be directed towards the determination of the main appeal.

DETERMINATION OF THE MAIN APPEAL
The position of this Court on the issues raised and arguments canvassed by the

respective parties on the Preliminary Objection is a painful but necessary therapy of an adage in the South-western part of this country. By the preliminary objection, the parties lured this noble Court into leaving leprosy to cure ringworm’. Now that the ‘ringworm’ of the preliminary objection has been addressed, now is the time to deal with the more serious ailment of leprosy) which, in this figurative metaphorical expression, is the main issue raised in this appeal.

We wish to pause a while to observe the seemingly superfluous and overlapping issues formulated by the parties in their briefs of argument. First, any sentence more than 3-4 lines is grammatically inelegant, and putting it straight, wrong. The Appellant formulated 8 issues in paragraph 3.0 at pages 7.9 of the Appellant’s Brief of argument. The average number of each issue, formulated as separate sentence, is 8-10 lines. This is not too elegant.

By adopting the issues formulated by the Appellants (sic), although this is a sole-Appellant appeal: the 3rd Respondent also invariably slips into the inelegance of long and inordinate sentences and the surplusage style of brief drafting

and writing through overlapping formulation of issues.

The 1st and 2nd Respondents formulated 5 issues as listed in paragraph 4.0 of their brief of arguments at pages 13- 15, slightly shorter than Appellants, an average of about 6-7 lines per sentence or issue.

ISSUES FOR DETERMINATION
We are ad idem on this side that the several issues in this appeal will and could be adequately resolved and answered under two issue.
Therefore, for the purpose of this judgment, we have restricted ourselves to two broad issues in effectively determining this appeal, thus:
“1. Whether or not there has been a finding of facts by the trial Court on the issue of certificate forgery by the 1st Respondent.
2. Whether or not based on the finding of facts on the issue of certificate forgery, the 1st Respondent stands disqualified from contesting the House of Representatives election for Ado Okpokwu and Ogbadibo Constituency of Benue State.”

CONSIDERATION AND RESOLUTION OF RELEVANT ISSUES
ISSUE 1:
“Whether or not there has been a finding of facts by the trial Court on the issue of certificate forgery by the 1st Respondent.”

The totality

of submission of learned Senior Counsel to the Appellant is that the 1st Respondent presented a forged certificate to the 3rd Respondent, and that the Court below us was wrong to have insisted that there ought to, or must have been a charge, trial and conviction of the 1st Respondent for forgery. The learned Silk cited the provisions of Section 66(1) of the Constitution of the Federal Republic of Nigeria (as amended) and Section 31(2), (5) and (6) of the Electoral Act, 2010 (as amended). See pages 9-10 of the Appellants Brief of Arguments. The learned senior counsel cited decisions of this Court in the case ATTORNEY-GENERAL OF ONDO STATE VS ATTORNEY-GENERAL OF EKITI STATE (2001) 17 NWLR (Pt. 743) 706 at 756.

He contends further that the provision of the law is clear and unambiguous and the Court below ought to have given effect to it, being elementary principle of law. Counsel quoted the decision of this Court in the above cited authority thus:
“It is certainly a cardinal principle of interpretation that where in their ordinary meaning the provisions are clear and unambiguous effect must be given to them without resorting to any aid internal or

external. It is the duty of the Court to interpret the words of the law maker as used. Those words may be ambiguous, but even if they are, the power and duty of the Court to travel outside them on voyage of discovery are strictly limited. (See for example MAGOR AND ST. MELLON R.D.C VS NEWPORT (1951) 2 All E.L.R. 839, LONDON TRANSPORT EXECUTIVE V BETTS (1959) AC 231, ATTORNEY-GENERAL OF BENDEL STATE V. ATTORNEY-GENERAL OF THE FEDERATTON & ORS. (1981) 10 S.C. 1, (1981) 12 N.S.C.C. 314.)

The learned senior Counsel to the Appellant argued vehemently that, what the law requires to be proved under Section 31(5) of the Electoral Act (as amended) is simply that the information given in the affidavit of the 1st Respondent or an) document submitted by the 1st Respondent to INEC, is false. He contended that the decision of the Court below that a person who alleged that another breached Section 66(1)(i) of the 1999 Constitution (as amended) should first establish that such a person was charged, tried and convicted of forgery by a competent Court of law, appears to have read extraneous provisions or meaning into an otherwise clear provision. See pages 9-14 of the

Appellant’s brief of argument.

The flip side of the argument on this issue is presented in the brief of argument of the 1st and 2nd Respondents where learned Senior Counsel submitted that, where there is an allegation that a person has presented a forged certificate to the 3rd Respondent, the burden and standard of proof should be as restated by this Court in the case of KAKIH vs. PDP (2014) NWLR (Pt 1430) 374 at p 423. In KAKIH, Counsel contended that this Court held thus:-
“By virtue of Section 362 and 363 of the Penal Code, a party who asserts that another person presented a forged certificate must prove beyond reasonable doubt that the certificate was presented with the knowledge that it would be used fraudulently or dishonestly as genuine. In this case, for the appellant to succeed in his case of presentation of forged certificate, he ought to have presented evidence that the 4th respondent presented a forged certificate to the 2nd respondent knowing that it would be used fraudulently or dishonestly as genuine…”

The learned Senior Counsel to 1st and 2nd Respondent increased the velocity of his arguments by submitting that every forgery requires proof of requisite mens

rea, i.e knowledge that the document presented was going to be used fraudulently or dishonestly as genuine, which onus must be discharged by the Appellant. He submitted further that the provisions of Section 31 (5) and (6) of the Electoral Act 2010 (as amended) imposes a procedural obligations on the part of the Appellant and anyone who desires to disqualify a candidate from contesting an election to approach the Court through a suit filed either at the Federal High Court, High Court of a State or FCT against. See paragraphs 5.1.1 to 5.1.16 at pages 14-19 of the 1st and 2nd Respondents brief of argument.

We have carefully digested the respective submissions of Appellants and Respondents’ Counsel, as the 3rd Respondent opted to be neutral and abide by whatever becomes our decision in this appeal. The question that keeps agitating our minds is whether a Court of law has made a pronouncement or finding on the facts of certificate forgery, being the main issue in this appeal as it relates to the 1st Respondent. Our answer is, consensually in the affirmative. There has been a judicial pronouncement on the fact of whether or not the 1st Respondent

presented a forged certificate to the 3rd Respondent for the purpose of an election. The Court below, in error, failed to pay attention to this very crucial fact. We wish to quote the trial Court on this important issue:
“The Court’s finding/conclusions are based on paragraphs 8-23 of Plaintiff’s affidavit in support of Originating Summons sworn to on 26/1/15, with Exhibits A-V, Further Affidavit No. 2 in support of the Originating Summons deposed to by Charity Adah Ms, legal practitioners with Exhibits A3 & A4 particularly Exhibits T and A3. Exhibit T, the judgment of National/State House of Assembly Election Tribunal for Makurdi, Benue State delivered on 6/9/2011 at pages 57 & 58 are conclusive on this issue. Exhibits A3 is a Certified True Copy of letter dated 22nd December 2014 emanating from Dr. Suleiman S. Buba, Registrar, Federal Polytechnic, Mubi, to Marthias O. Emeribe Esq confirming certificate forgery by Mr. Abah Christian Adabah, 3rd Defendant in respect of his certificate No. FPM 000293 OBTAINED IN 1985. See KAKIH V PDP (2014) 15 NWLR pt 1430 374 SC. Exhibits T & A3 are self explanatory, positive and devoid of any ambiguity

(Emphasis ours).

This is an unassailable and comprehensive finding on facts of forgery. We cant agree less with the position of the trial Court which specifically finds that a Tribunal had judicially resolved and concluded, unequivocally, that the 1st Respondent forged the certificate in question. The Appellant’s case at the trial Court was predicated, almost exclusively, on the fact that the 1st Respondent had presented a forged certificate to INEC (the 3rd Respondent).

The question in paragraph 6 of part E of the 1st Respondents INEC form CF001 is very specific: Have you ever presented a forged certificate to INEC. We align with the position of the learned senior Counsel to the Appellant, that this question relates to all elections, for as long as a candidate had previously presented a forged certificate to INEC. The same scenario plays itself out vis-a-vis the provisions of Section 66(1)(i) of the 1999 Constitution (as amended) which is to the effect that, quote:
“No person shall be qualified for election to the Senate or the House of Representatives if:-
(i) he has presented a forged certificate to the

Independent National Electoral Commission.
The law is very clear to warrant any form of colourated interpretations. The question in form INEC form CF001 and Section 66(1)(i) of the 1999 Constitution (as amended) is whether a certificate that turned out to be forged has ever been presented, not whether the forger has ever been charged, tried or convicted on this. The Court below got into the error of forgery under Section 362 and 363 of the Penal Code as against forgery under the Electoral Act 2010 (as amended). More importantly, a Court or tribunal had found the certificate in issue to be forged.
We have reiterated on several occasions that ours is not only a Court of law but public policy. Forgery of certificate for the purpose of election and electoral processes and forgery under criminal law are not the same issue. Forgery under the Electoral Act is a specific law on forgery or presentation of a forged certification for the purpose of election. The best forum for electoral forgery is election tribunal as against general criminal trial. This is what played out, rightly in this appeal. We restate our position that, as held by the trial

Court,
”..the judgment of National/State House of Assembly Election Tribunal for Markurdi, Benue State delivered on 6/9/2011 at pages 57 & 58 are conclusive on this issue.”
Election tribunal had exercised specific jurisdiction to try the issue. There has also been a judicial reconfirmation by the trial Court on the same issue as it relates to forgery of certificate for electoral purposes, by the 1st Respondent. These are not controverted and the 1st Respondent did not deem it fit to appeal this finding of facts that he perceived were adverse to his electoral fortune or political future.
This position restates the settled position of the law that the legal consequence of failure to appeal against any finding, holding or decision of a Court is that the parties to the case have accepted it as correct and binding upon them. On this side of the judicial structure, the law is settled that a party is stopped by his failure to appeal against an adverse finding of a fact relevant to the issue. See ABUBAKAR V. BEBEJI OIL AND ALLIED PRODUCTS LTD & ORS (2007) 18 NWLR (Pt. 1066) 319 (2007) 2 S.C 48 Per Ogbuagu, J.S.C. (P. 68. para.

F)
I am unable to disagree with learned senior Counsel on the issue as the 1st Respondent is estopped by his failures to appeal against the numerous adverse findings of fact on the issue of certificate forgery which relate directly to his electoral future. See the cases of JOE IGA & ORS. VS. CHIEF EZEKIEL AMAKIRI & ORS (1976) 11 SC AT 12-13. See also the position of this Court in S.P.D.C. (NIG) LIMITED VS X.M. FED LTD (2006) 16 NWLR (Pt 1004) 189 at 201, paras D-F.
It is our considered view that the Court below was wrong to have held that 1st Respondent ought to have been charged, tried and convicted. This is because the case of the Appellant at the trial Court is predicated on the provision of Section 66(1)(i) of the 1999 Constitution (as amended) and Section 31 (2), (5) and (6) of the Electoral Act 2010 (as amended).

Issue one is resolved in favour of the Appellant.

ISSUE 2
“Whether or not based on the finding of facts on the issue of certificate forgery the 1st Respondent stands disqualified from contesting the House of Representatives election for Ado Okpokwu and Ogbadibo Federal Constituency of Benue State.”

The Appellants contention

on this issue that the Court below was wrong to have held that the 1st Respondent was duly nominated and sponsored by the 2nd Respondent and consequently qualified to contest the 2015 General Election. The learned senior Counsel contends that the 1st Respondent having breached constitutional and statutory provisions stands disqualified from contesting election. See pages 26-30 of the Appellants brief of argument.

The converse argument of the 1st and 2nd Respondents is that the Court below was right in relying on Section 141 of the Electoral Act 2010 (as amended) to fault the trial Courts finding that the Appellant won the 2015 general election to Ado, Okopwu and Ogbadibo Federal Constituency of Benue State. See pages 39-42 of the 1st and 2nd Respondents brief.

We are of the firm view that a party must not be allowed to profit from his or her fraud.

it was time for the 2015 general election he carefully and deliberately omitted to include this fact. The relevant question is whether the 1st Respondent ever presented a forged certificate to INEC (3rd Respondent) at any (previous or current) elections, and not whether or not it was listed or omitted from the declaration form completed for a particular election. The second legal is that there must have been a judicial pronouncement, by a Court or Tribunal, that the certificate in question is forged.
In this appeal, an Election Tribunal with specific jurisdiction has found, in the judgment of National/State House of Assembly Election Tribunal for Makurdi, Benue State delivered on 6/9/2011 at pages 57 & 58, that the certificate presented by the 1st Respondent is forged. And this, as the trial Court rightly found, is conclusive on this issue.
The provisions of the Nigerian Constitution are unambiguous. The Constitution expressly provides that:
66. (1) No person shall be qualified for election to the Senate or the House of Representatives if:
(ii) he has presented a forged certificate to the Independent National Electoral

Commission.
The intention of the Constitution is that any one who had presented a forged certificate to INEC should stand automatically disqualified for all future elections if, as in this case, a Court or tribunal finds the certificate to have been forged, and it matters not whether or not such facts is further fraudulently or desperately concealed in subsequent elections or declaration forms. No decent system or polity should condone, or through judicial policy and decisions, encourage the dangerous culture of forging certificates with impunity to seek electoral contest.
The 1st Respondent ought not to have, and the opinion of the law, was not qualified to contest election into the Ado, Okopwu and Ogbadibo Federal Constituency of Benue State based on the combined effects of the provisions of Section 66(1)( i) of the 1999 Constitution (as amended) and Section 31 (2), (5) and (6) of the Electoral Act 2010 (as amended). He stands constitutionally disqualified. This being a pre-election matter, we agree with the trial Court that votes polled by the 1st Respondent through nomination by the 2nd Respondent are invalid and wasted. The Appellant being

the runner up in the PDP Primary election conducted for the said election automatically steps into his shoes as nominee and winner of the election into the Ado, Okopwu and Ogbadibo Federal Constituency of Benue State.
It is our considered view that the provision of Section 141 of the Electoral Act only applies in cases of post-election cases at the Election Tribunal as against pre-election matters. To hold otherwise would mean allowing ineligible persons to contest and win an election and thus deploy dilatory tactics to reap from his or her fraud to the fullest until the expiration of the tenure procured by fraud.
Due to the foregoing reasons, issue two is also resolved in favour of the Appellants. The judgment of the Court below is hereby set aside. The advisory opinion of the learned trial judge is instructive in this regard, and we quote:
“The culture of impunity exhibited by the 1st and 3rd Defendants continued unabated with 2nd Defendant, INEC declaring 3rd Defendant not only eligible but the winner of the said general elections 2015 (sic) and returned him unopposed as the Honorable member for the said Federal constituency on the platform of

1st Defendant, PDP, as other registered Political parties fielded no candidates at the general election 2015.
The era of political parties presenting candidates holding public offices at Local, State and National levels with forged certificates which still persists in the polity needs to be addressed urgently by relevant law enforcement agencies and other stakeholders (and we add-including Courts) in this nascent democracy (Emphasis ours).”
This Court must take the lead, in righting the wrongs in our society, if and when the opportunity presents itself as in this appeal. Allowing criminality and certificate forgery to continue to percolate into the streams, waters and oceans of our national polity would only mean our waters are and will remain dangerously contaminated. The purification efforts must start now, and be sustained as we seek, as a nation, to now ‘change’ from our old culture of reckless impunity.
The Nigerian Constitution is supreme. It desires that no one who had ever presented forged certificate to INEC should contest election into Nigeria’s National Assembly. This is clear and sacrosanct. More compelling as a judicial

determination had been taken by no less a technical panel sitting in, at least, a panel of three judges as Election Tribunal with constitutional mandate to determine such issues as they relate to elections and its outcomes, including eligibility. This has also been affirmed by the trial Court in this appeal. On these issues, our duty is to apply the Constitution and the law in its start, original form undiluted by colourated interpretations.

In sum, this appeal succeeds. The decision of the Court below is hereby set aside. The judgment of the trial Court is restored and upheld. The election of the 1st Respondent into the Ado, Okopwu and Ogbadibo Federal Constituency of Benue State is a nullity, as he stands constitutionally disqualified from contesting the said election. The Appellant is and hereby declared the candidate of the 2nd Respondent and winner of the Okopwu and Ogbadibo Federal Constituency of Benue State and should be issued certificate of return immediately by the 3rd Respondent (INEC).
We make no order as to cost

MARY UKAEGO PETER-ODILI, J.S.C.: I agree with the judgment just delivered by my

learned brother, Sidi Dauda Bage JSC and to underscore my support for the reasonings, I shall make some remarks.

This is an appeal against the judgment of the Court of Appeal, Abuja Division delivered on 8th February, 2016 wherein the appeal of the 1st and 2nd respondents was partially allowed.

FACTS BRIEFLY STATED:
The appellant and the 1st respondent are members of the Peoples Democratic Party, the 2nd respondent.

By virtue of being members of the 2nd respondent, the appellant and the 1st respondent participated in the 2nd respondents House of Representatives Primary Election for Ado, Okpokwu and Ogbadigbo Federal Constituency of Benue State for the 2011 General Elections where the appellant came second while the 1st respondent came first.

Having won the said Primary Election and become the Peoples Democratic Party House of Representatives candidate for the said Ado, Okpokwu and Ogbadigbo Federal Constituency of Benue State for the 2011 General Elections, the 1st respondent proceeded to obtain INEC Form CF001, filed same and sworn before a Commissioner of Oaths at the Registry of the Benue State High Court, Makurdi on the 31st

January, 2011 that all the information which he stated in his said INEC Form CF001 are true and correct.

In Part B and C of 1st respondent’s aforesaid INEC Form CF001 for the 2011 General Election which relate to Educational Institutions attended with dates and Educational Qualifications, the 1st respondent stated unequivocally in his hand writing that he attended the Federal Polytechnic Mubi 1982 – 1983 and 1983 – 1985 and that during the aforesaid periods of his stay at the Federal Polytechnic Mubi, he obtained or was awarded Accounting Certificate, 1983 and Ordinary National Diploma in Accountancy 1985. See page 374 of Vol. 1 of the record.

Undone yet, the 1st respondent proceeded to present his said INEC Form CF001 for 2011 General Elections and some documents which included the said Accounting Certificate and Ordinary National Diploma Certificate in Accountancy which he claimed was awarded to him by the Federal Polytechnic Mubi in 1983 and 1985 respectively to INEC. See pages 372 – 384 of Vol. 1 of the record which showed that 1st respondents Form CF001 for 2011 General Election and the aforesaid accompanying documents were duly received

by INEC on 31st January, 2011. The said Form CF001 and the said accompanying documents were certified by INEC showing that they are INEC possession.

Curious about the 1st respondents claim that he obtained the aforesaid certificates from the Federal Polytechnic Mubi, inquiries were carried out at the Federal Polytechnic Mubi to test the authenticity of the said Certificates which the 1st respondent claimed were issued to him by the Federal Polytechnic, Mubi.

In its response, the Federal Polytechnic Mubi through its Registrar Suleiman S. Buba and one Yunusa J, Umar SEO (Exams and Records) on behalf of the said Registrar of the Federal Polytechnic Mubi, via two letters Exhibits ‘O and P at pages 57 and 58 of Vol. 1 of the record, stated unequivocally that although the 1st respondent was issued a certificate in Accountancy in 1983, the 1st respondent never enrolled for a National Diploma Programme in Accountancy at the Federal Polytechnic Mubi and that the said National Diploma Certificate in Accountancy which the 1st respondent claimed was awarded to him by the Federal Polytechnic Mubi was forged.

As a result of the

aforesaid discovery that the 1st respondent was never issued the aforesaid National Diploma Certificate Accountancy which he specifically stated in his own hand writing in his INEC Form CF001 for 2011 General Elections that same was awarded him by the Federal Polytechnic, Mubi, sworn on oath in support of his aforesaid claim belore a Commissioner for Oaths at the Registry of Benue State High Court, Makurdi and proceeded further to present the said National Diploma Certificate to INEC, Abuja with suit No.FHE/ABJ/CS/195/2011 against the 1st, 2nd and 3rd respondents herein, claiming the said suit that the 1st respondent be disqualified from contesting the 2011 General Election.

Upon the service of the said suit on the 1st respondent, he did not file any defence but instead withdrew his candidature as the 2nd respondents House of Representatives candidate for Ado, Okpokwu and Ogbadigbo Federal Constituency of Benue State for the 2011 General Elections and he was consequently replaced by the 2nd respondent with the appellant.

Consequently, as the candidate of the 2nd respondent in the House of Representatives Election for Ado, Okpokwu and Ogbadigbo Federal

Constituency of Benue State during the 2011 General Elections, the appellant emerged the winner in the said election and was elected as a Member House of Representatives representing the aforesaid Federal Constituency.

After the said election of the appellant, the appellant was dragged before an Election Tribunal by the candidate of the then Action Congress of Nigeria in Petition No. NSHA/EPT/BN/07/2011 BETWEEN ONJEH DANIEL DONALD & ANOR v HASSAN ANTHONY SALEH & 4 ORS.
In its judgment in the said election petition, the Election Tribunal held that the reason why the 2nd respondent replaced the 1st respondent with the appellant was because the 1st respondent submitted forged certificate to INEC and there was therefore a cogent and verifiable reason for the submission of the 1st respondent herein. Furthermore, it was held by the said Election Tribunal that the 2nd respondent was aware that the 1st respondent presented a forged certificate to INEC. See pages 198 and 199 of Vol. 1 of the record.

By virtue of a letter dated 15th November, 2014, the appellant through his solicitor wrote the Federal Polytechnic Mubi requesting for a confirmation

of its earlier position that it never issued the 1st respondent the said National Diploma Certificate in Accountancy and that the said Certificate was a forgery. See page 59 of Vol. 1 of the record.

In its response to the appellants aforesaid request, the Federal Polytechnic Mubi, through its Registrar Dr. Suleiman S. Buba again stated emphatically that the !st respondent’s said National Diploma Certificate in Accountancy is forged and not genuine. See pages 60 – 61 of Vol.1 of the record and pages 765 – 769 of Vol.2 of the record.

The issue of the 1st respondent presenting a forged certificate to INEC was in the public domain in the 1st respondent’s Federal Constituency and an issue of public discourse in his said Federal Constituency as shown in the candidate of the opposition party making it an issue in the aforesaid Election Petition No. NSHA/EPT/BN/REP/07/2016 BETWEEN ONJEH DANIEL DONALD & ANOR. v HASSAN ANTHONY SALEH & 4 ORS.
This circumstance should have made the 1st respondent challenge the strong denial by the Federal Polytechnic, Mubi that it awarded him the said National Diploma Certificate Accountancy, the 1st respondent having

undoubtedly presented the said certificate to INEC.

In November, 2014 when the 2nd respondent had started selling nomination forms, the 1st respondent purchased the said nomination forms and indicated interest that he would be contesting in the 2nd respondent’s House of Representatives Primary Election fixed for 6th December, 2014.

On becoming aware of the aforesaid steps taken by the 1st respondent, the appellant through his counsel wrote a petition to the 2nd respondent’s Chairman House of Representatives Screening Committee, the National Chairman of the 2nd respondent/ the National Legal Adviser of the 2nd respondent, the National Publicity Secretary of the 2nd respondent and the Inspector General of Police intimating them via the said petition that the 1st respondent presented forged certificate to INEC in 2011 and made false declaration on oath in his INEC Form CF001 which he duly swore before a Commissioner for Oaths and consequently should be disqualified from participating the said Primary election. See pages 39 – 48 of vol.1 of the record.

The appellant’s said petition was ignored by the said National Leaders of the 2nd respondent who

proceeded to allow the 1st respondent to participate in the said House of Representatives Primary Election on 6th December, 2014 where he was declared winner and the appellant came second.

Dissatisfied with the 1st respondent’s participation in the 2nd respondent’s said primary election, the appellant on 12th December, 2014 filed Suit No. FHC/ABJ/989/14 at the Federal High Court, Abuja against the 1st- 3rd respondents herein. While the appellant was waiting to be given a date to argue his motion exparte for leave to serve the 1st respondent with Appellant’s processes outside jurisdiction in the said suit, the 1st respondent without being served the said Court processes filed a Preliminary Objection and Written Address challenging the competence of the suit. See pages 631 – 642 and 650 – 652 of vol. 2 of the record.

In filling his INEC Form CF001 for 2015 General Elections having been declared the winner of the 2nd respondents House of Representatives Primary Election for Ado Okpokwu and Ogbadigbo Federal Constituency, when asked if he had ever presented a forged certificate to INEC in Paragraph 6 of Part E of the said INEC

Form CF001 for 2015 General Elections, the 1st respondent answered with an emphatic NO! See specifically pages 388 -389 of vol. l of the record.

Furthermore, the 1st respondent in his INEC Form CF001 for 2015 General Election relating to Educational Institutions attended with dates and Educational Qualifications with dates omitted everything relating to the Federal Polytechnic, Mubi. See page 387 of vol.1 of the record.

Upon becoming aware of the 1st respondents declaration in Form CF001 for 2015 General Elections deposed to before the Commissioner For Oaths at the High Court, FCT Registry, Abuja on 18/12/2014, the appellant discontinued the earlier Suit No. FHE/ABJ/CS/989/2014 on 26th January, 2015.

After discontinuing the aforesaid suit earlier filed by the appellant, on the same 26th January, 2015, the appellant filed a fresh suit incorporating the aforesaid issue of false declaration on oath on the issue of presentation of forged certificate. See pages 3 – 291 of vol.1 of the record.

After the filing of the said suit, the Honourable Chief Judge of the Federal High Court assigned the suit to the Court presided over by Hon. Justice

A.F.A. Ademola. The suit was consequently fixed by the trial Court for 2nd February, 2015 for the hearing of appellants motion ex parte for an Order, among others, for leave to serve the 1st respondent outside jurisdiction the Court processes in the said suit.

While appellants counsel was in Court on the said 2nd February, 2015, to argue appellants said motion exparte, he was informed by a Court official that the case file of the suit which was assigned to that Court had been retrieved from the Court and presently at the Federal High Court Registry, Abuja.

Appellant’s counsel immediately rushed to the Federal High Court Registry Abuja and found the case file neatly tied and was informed that the case file was on its way to the Federal High Court, Makurdi based on application for transfer by the 1st respondent’s Senior Counsel. Appellant’s counsel was shown the said letter of transfer by the 1st respondents Senior Counsel. See pages 626 – 628 of vol.2 of the record.

Appellant’s counsel was surprised as the 1st respondent had not been served the Court process in the said suit and appellant’s counsel was never served and was

not aware of the said letter of transfer written by the 1st respondent’s counsel.

Aggrieved, appellants senior counsel wrote the Hon. Chief Judge of the Federal High Court for the reversal of the decision to transfer the suit on cogent grounds. See pages 644-647 of Vol. 2 of the record. Upon being aware of the true state of events, the Hon. Chief Judge of the Federal High Court reversed his decision transferring the appellant’s suit to the Federal High Court, Makurdi.

On 3rd February, 2015, appellant’s senior counsel argued his said Motion Exparte praying among others, for an order for leave to serve the 1st respondent the Court process outside the jurisdiction of Court and same, among other orders were granted on the said 3rd February, 2015.

Upon service of the Court Process on the respondents, the 1st and 2nd respondents refused to immediately file any counter-affidavit in support of appellant’s originating summons but however filed a Notice of Preliminary Objection challenging the jurisdiction of the trial Court to entertain appellant’s suit, filed a Notice of Appeal against the decision of the trial Court abridging the time for the 1st

respondent to appear and file his defence to the matter and filed an application for stay of proceedings of the trial Court. See pages 406 – 456 of vol. 1 of the record.

On 20th May, 2015, the trial Court delivered judgment in the appellant’s suit holding that the 1st respondent presented forged certificate to INEC and made false declaration on oath. The trial Court consequently granted the reliefs claimed by the appellant in his said suit. See pages 1057 – 1074 of vol. 2 of the record.

Dissatisfied with the said judgment of the trial Court, the 1st and 2nd respondents appealed against the said Judgment at the Court of Appeal. See pages 1086 – 1097 of vol.2 of the record.

On the 8th February, 2016, the Court below delivered its judgment partially allowing the 1st and 2nd respondents’ appeal on the grounds among others that to prove that a person presented a forged certificate, there must be evidence of a charge, trial and conviction of the person who is said to have presented the said forged certificate for forgery of the said certificate and the presentation of the forged certificate must not relate to past elections but must relate to the election

which a person who is said to present the said forged certificate is presently participating.

Aggrieved with the said judgment of the Court below, the appellant has approached the Supreme Court on appeal.

At the hearing of the appeal on 14/12/2016, learned counsel for the appellant, Dr. Alex Izinyon SAN, adopted appellant’s brief of argument filed on 21/3/2016. Also adopted is a Reply Brief filed on 6/10/16 and deemed filed on 14/12/16.
1. Whether the Court below was right in law to have held that the 1st respondent must have been charged, tried and convicted of forgery by a competent Court of law for the 1st respondent to be liable for presentation of forged certificate to INEC under Section 66(1) (i) of the 1999 Constitution (as amended) and making of false declaration on oath under Section 31 (2) (5) and (6) of the Electoral Act, 2010 (as amended), (Encompassing Grounds 1 and 5 of the Notice of Appeal).
2. Whether the decision of the Court below not to rely on the National Diploma Certificate in Accountancy presented by the 1st respondent to INEC in 2011, in determining the issue of presentation of forged certificate to INEC before it

because the 1st respondent did not include the said National Diploma certificate in his INEC Form CF001 for 2015 General Election and therefore the 1st respondent could not be said to have committed forgery, is not wrong in law in view of the provisions of Section 66(1)(i) of the 1999 Constitution (as amended) and the question in Paragraph 6 of the Part E of INEC Form CF001 for the 2015 General Election. (Encompassing Ground 2 of the Notice of Appeal).
3. Whether in view of the nature of the case before it, the Court below was right in law when it held that to prove that 1st respondent lied on oath when he stated that he never presented a forged certificate to INEC, it must be shown that the 1st respondent presented the said forged certificate with the knowledge that it would be used fraudulently or dishonestly as genuine, and assuming if the Court below was right in its said decision, the appellant did not prove beyond reasonable doubt that the 1st respondent presented a forged certificate with the knowledge that it would be used fraudulently or dishonestly as genuine. (Encompassing Ground 3 of the Notice of Appeal).
4. Whether the Court below was

right in law when it held that Exhibit T which is the Judgment of the National/State Houses of Assembly Election Tribunal which made a finding that the 1st respondent presented a forged certificate to INEC, could not be relied upon because the 1st respondent was not a party in the election petition where the said judgment emanated from, when the 2nd and 3rd respondents herein were parties in the said election petition. (Encompassing Ground 4 of the Notice of Appeal).
5. Whether the Court below was right in law to have held that the 1st respondent form CF001 has satisfied the constitutional requirements in Section 65(1) and (2) when the appellant’s case at the trial Court and the issue before the Court below was not predicated on the said Section 65 (1) and (2) of the 1999 Constitution (as amended). (Encompassing Ground 6 of the Notice of Appeal).
6. Whether the Court below was right in law to have held that the 1st and 2nd respondents’ Paragraphs 5.2(q) of their counter-affidavit, against appellant’s Originating Summons was unchallenged when the said paragraph 5.2(q) did not raise any fresh issue to warrant the appellant filing a Reply or a Further

and Better Affidavit. (Encompassing Ground 7 of the Notice of Appeal).
7. Whether the Court below decision that the 1st respondent was duly nominated and sponsored by the 2nd respondent and consequently was qualified to contest in the 2015 General Election was not wrong in law. (Encompassing Ground 8 of the Notice of Appeal).
8. Whether the Court below was not wrong in law to have on the basis of Section 141 of the Electoral Act, 2010 (as amended) held that it was wrong for the trial Court to have adjudged the appellant the winner of the election and ordered that he be issued a certificate of return when the Court below had held that the said Section 141 of the Electoral Act was only applicable to and directed at Election Tribunal and Court of Appeal exercising its first instance jurisdiction in the hearing and determination of election petition and not at regular Courts. (Encompassing Ground 9 of the Notice of Appeal),

Learned counsel for the 1st and 2nd respondents adopted their brief of argument filed on 20/6/2016 and deemed filed 21/6/16. In it was raised and argued a preliminary Objection.
But in the event the objection failed,

learned counsel distilled five issues for determination which are thus:-
1. Whether in the absence of proof of any charge, trial and or conviction of the 1st respondent for forgery as well as absence of proof of intent to use a forged document fraudulently or dishonestly as genuine, the 1st respondent could be said to have presented forged certificate to the 3rd respondent. (Grounds 1, 3 and 5 of the Notice of Appeal),
2. Whether the Court below could be faulted for rejecting appellant’s reliance on National Diploma Certificate in Accountancy which he claimed the 1st respondent presented to the 3rd respondent in 2011 when no such diploma was included in the 1st respondent’s INEC Form CF001 for the 2015 general election and in view of Paragraph 5.2(q) of the 1st and 2nd respondents’ counter-affidavit.
(Grounds 2 and 7 of the Notice of Appeal).
3. Whether the Court below rightly refused to rely in Exhibit ‘T’, adduced by the appellant in his bid to establish his allegation of forgery against the 1st respondent. (Ground 4 of the Notice of Appeal).
4. Whether the Court below was wrong in observing that the 1st respondent’s INEC Form CF001

satisfied the constitutional requirements in Section 65 (1) and (2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). (Ground 6 of the Notice of Appeal).
5. Whether the Court below was right in faulting the trial Court’s endorsement of the appellant as winner of the 2015 general election and in finding instead that the 1st respondent was the duly nominated and sponsored candidate of the 2nd respondent and qualified to contest the general election. (Grounds 8 and 9 of the Notice of Appeal).

Mr. T. M. Inuwa of counsel for the 3rd respondent preferred to remain neutral as the umpire.

The Preliminary Objection raised by the 1st and 2nd respondents have to be dealt with first before venturing further as the competence of the appeal and jurisdiction or lack thereof depend on it.
NOTICE OF PRELIMINARY OBJECTION:
TAKE NOTICE that the 1st and 2nd respondents shall raise objection as to the competence of the appellant’s Notice of Appeal filed on 8th February 2016 and on 18th February 2016 respectively and grounds 6 and 9 of the Notice of Appeal filed by the appellant on 18th

February 2016 on grounds that:
The appellant’s Notice of Appeal is incompetent and ought to be struck out,
GROUNDS UPON WHICH THE OBJECTION IS PREDICATED:
1. The Notice of Appeal filed on 18th February 2016 does not contain the Addresses for service of the 1st and 2nd respondents.
2. The appellant’s Notice of Appeal was not served on the 1st and 2nd respondents personally.
3. Grounds 6 and 9 challenge statements or observation of the Court below. They are a challenge against mere obiter dicta of the Court below.
4. The notice of appeal filed on the 1st of February 2016 being the second notice of appeal is an abuse of Court processes in view of the earlier notice of appeal filed on the 8th of February, 2016.
5. Ground 9 does not arise from the Judgment of the Court below.

Learned counsel for the 1st and 2nd respondents/objectors contended that the Notice of Appeal upon which the appellant’s brief of argument appears to be based which was filed on 18/2/2016 and even the earlier one of 8th February 2016 did not contain the address of service of the Objectors and not served on them personally. He referred to Notice of Appeal, Order 8

Rule 2 (1) of the Supreme Court Rules (Amended in 1999); National Bank of Nigeria Ltd v Guthrie Nig. Ltd (1993) 3 NWLR (Pt 281) 643 etc That the appellant’s Notice of Appeal are incompetent.
.
Also submitted for the Objectors is that it is inappropriate for an appellant to maintain two notices of appeal to prosecute his appeal as in this case and so the second notice translates to an abuse of Court process and the notice of appeal should be struck out. He cited Dingyadi & Anor v INEC (2010) 18 NWLR (Pt.1224) 1 at 73 – 76, 122 – 123, 130.

Learned counsel for the Objectors contended that Grounds 6 and 9 of the Notice of Appeal are based on Obiter Dicta which cannot be a ground or basis of a ground of appeal. He cited Boothia v Fareast (2001) 3 MJSC 32 at 45; Achakpa v Nduka (2001) 9 MJSC 137 at 167.

That also ground 9 of the Notice of Appeal has no relation to the Judgment of the Court below and does not arise from the said judgment and so is liable to being struck out. He cited Idika & Ors v Erisi & Ors (1988) 2 NWLR (Pt.78) 563; Adebiyi v Umar (2012) 9 NWLR (Pt.1305) 279 at 286; Olonade & Anor v Soweimo (2014) LPELR-22914 (SC); Atoyebi v Governor of Oyo State (1994) 5

NWLR (Pt 344) 296 at 305.

In response, learned counsel for the appellant stated that the appellant endorsed on his Notice of Appeal an address of service for the 1st and 2nd respondents which is the same as the one indicated in the 1st and 2nd respondents’ Notice of Appeal at the Court below.

That the 1st and 2nd respondents/Objectors Counter Affidavit on appellant’s application for injunction did not challenge the competence of the Notice of Appeal which means Objectors had waived their rights the circumstance. He referred to NBC PLC v Ubani (2014) 4 NWLR (Pt.1398) 421 at 449.

That the Objectors have not suffered any miscarriage of justice nor their right to fair hearing breached in any form whatsoever. He stated that the Objectors are relying on technical justice instead of substantial justice which is no longer the norm. He relied on Uwazurike v A.G Federation (2013) 10 NWLR (Pt.1361) 105, Omoju v FRN (2000) 7 NWLR (Pt.1085) 38 – 57; Ukiri v Geco Prakla (Nig.) Ltd (2010) 16 NWLR (Pt.1220) 544 at 558 etc.

It was contended for the appellant that it was not true that Ground 9 of the Notice of Appeal attacked obiter dicta and not based on issue

arising from the judgment of the Court below.

Also that the submission on an abuse of Court process relating to more than one Notice of Appeal is misconceived.

This Preliminary Objection is certainly misconceived and not borne out of the record and the earlier it is dispatched to make room for the meat of the matter the better. Firstly the grouse of the 1st and 2nd respondents that the appellant had not endorsed on the Notice of Appeal an address of service for the 1st and 2nd respondents cannot be sustained as it is not the correct position and Order 8 Rule 2 (1), Order 2 Rule 3 (1) (b) of the Supreme Court Rules (as amended) is not infringed.

Also not sustained in this objection is that matter of some of the grounds not stemming from the judgment of the Court below or that they were matters of obiter dicta. Indeed, by this objection, the Objectors want the precious time of Court utilized on mere technicalities as to whether they are sufficient to vitiate the process in limine. That clearly is not within the current trends where substantial justice has taken the pride of place and very little time given to matters pertaining to technical justice in

our Judicial administration. It is for that reason that what the Objectors seek at this point in time and this Preliminary Objection cannot be granted therein as it is a luxury we cannot indulge in. See Egbo v Agbara (1997) 1 NWLR (Pt.481) 293 at 321; Uwazuruike v A.G. Federation (2013) 10 NWLR (Pt.1361) 105; Omoju v FRN (2000) 7 NWLR (Pt.1085) 38 at 57; Ukiri v Geco – Prakla (Nig.) Ltdrelied upon.

Therefore this Preliminary Objection is dismissed for lacking in merit.

MAIN APPEAL:
I shall utilize the issues as crafted by the respondents 1st and 2nd for ease of reference.
ISSUES 1, 2 & 3:
1. Whether in the absence of proof of any charge, trial and or conviction of the 1st respondent for forgery as well as absence of proof of intent to use a forged document fraudulently or dishonestly as genuine, the 1st respondent could be said to have presented a forged certificate to the 3rd respondent.
2. Whether the Court below could be faulted for rejecting appellants reliance on National Diploma Certificate in Accountancy which he claimed the 1st respondent presented to the 3rd respondent in 2011 when no such diploma was included in the 1st

respondent’s INEC Form CF001 for the 2015 general election and in view of Paragraph 5.2(q) of the 1st and 2nd respondents, counter-affidavit.
3. Whether the Court below rightly refused to rely on Exhibit ‘T’, adduced by the appellant in his bid to establish his allegation of forgery against the 1st respondent.

Learned counsel for the appellant contended that the Provisions of Section 66 (1)(i) of the 1999 Constitution (as amended) and Section 31 (2), (5) and (6) of the Electoral Act, 2010 (as amended) are clear and unambiguous and consequently should be given their ordinary meaning. He cited A.G Ondo State v A. G. Ekiti State (2001) 17 NWLR (Pt.743) 706 at 756; Section 135 (1) of the Evidence Act, 2011.

That the decision of the Court below not to rely on the National Diploma certificate in Accountancy presented by 1st respondent to INEC in 2011 in determining issue of presentation of forged certificate and false declaration on oath before it on it the ground that since the 1st respondent did not include the said National Diploma Certificate in Accountancy in his INEC form CF001 for the 2015 General Election, he could not be said to have

committed forgery, is not a reflection of the law and the circumstances surrounding the appellants case.

That where a candidate in an election had in a past election presented a forged certificate to INEC, the fact that in the present election he omitted to make reference to the said forged certificate he presented in the said past election, does not prevent another person from raising the issue of the candidate’s past presentation of forged certificate to INEC and the Court using it to determine if he is disqualified from contesting the present election. He stated that affirming the decision of the Court below on this issue, will undoubtedly lead to the destruction of the objective for which Section 66 (1) (i) was enacted to attain. He citedOjukwu v Obasanjo (2004) 12 NWLR (Pt.886) 169 at 209; UTB (Nig.) Ltd v Ukpabia (2000) 8 NWLR (Pt 670) 580; Adewole v Adesanoye (1998) 3 NWLR (Pt. 541) 175 at 198.

Learned counsel for the appellant contended that considering the nature of the appellant’s case at the two Courts below, the Court of Appeal was wrong law to have held that the 1st respondent had lied on oath and that it must be proved

beyond reasonable doubt that he presented a forged certificate to INEC with the knowledge that the said forged certificate would be used fraudulently or dishonestly as genuine.

That by writing his own hands that he was awarded a National Diploma Certificate Accountancy and proceeded deliberately to swear an oath that all answers, facts and particulars he gave in his said Form CF001 are true and correct after which he proceeded to present the said National Diploma Certificate in Accountancy to INEC and the Federal Polytechnic Mubi firm denial that it awarded the 1st respondent a National Diploma Certificate in Accountancy show beyond reasonable doubt, that the 1st respondent presented the said certificate with the knowledge that it would be used fraudulently or dishonestly as genuine.

In response, learned counsel for the respondents 1st and 2nd submitted that the Court below was right to hold that for the allegation of forgery to be sustained, the 1st respondent must have been charged, tried and convicted by a competent Court of law and it was not enough that he obtained a National Diploma Certificate which was found to be false. That allegation of

commission of forgery and or perjury are framed allegations given that forgery and perjury are serious criminal offences and where as in this case the allegation of commission of crime is made in a proceedings, the standard of proof is not less severe. That it is settled law that such allegation as in criminal cases must be proved beyond reasonable doubt. He cited Akalezi v The State (1993) 2 NWLR (Pt.273) 1 at 13; Nwosu v The State (1998) 8 NWLR (Pt.562) 433 at 444; Kakih v PDP (2014) NWLR (Pt.1430) 374 at 423 etc.

For the 1st and 2nd respondents, it was submitted that the words of Section 31 (5) and (6) have shown the procedure to be followed by a party who claims that another be disqualified from contesting election on ground of forgery or perjury in documents submitted to INEC to approach the Courts for a declaration that the information supplied or submitted to INEC is false failing which such a disqualification cannot be obtained. He cited FRN v Osahon (2006) 5 NWLR (Pt. 973) 361 at 436; Balonwu v A.G. Anambra State (2009) 18 NWLR (Pt.1172) 13 at 43; Okereke v Yar’Adua (2007) 12 NWLR (Pt.1100) 95 at 127 etc.

Learned counsel for the 1st and 2nd respondents

contended that the presentation of the forged certificate must be related to the present election for which the presenter is vying. That the only constitutionally permitted way to prove guilt or commission of an offence is by trial and conviction by a Court of law. That an election Tribunal is not a competent Court to declare or pronounce on any document as forged as it is the function of the regular Courts. He cited Okotie Eboh v Manager & Ors Vol.3 EA.C.

That the affidavit evidence of 1st and 2nd respondents debunked the claims of the appellant in Paragraphs 8-23 of the depositions of the appellant in support of the originating summons and the further affidavit also strongly disputed the authenticity or genuiness of Exhibits O, P, R, A3 and A4 by which the appellant sought to establish perjury and forgery against the respondent, as well as the authority of the alleged maker of Exhibit R to make or issue it. That the averments of the 1st and 2nd respondents in counter affidavit and further counter affidavit were not controverted by the appellant and so should be deemed established. He cited Agbaje v Ibru Foods (1972) 7 NSCC 338; Registered Trustees A.A.C. v

Fatunde (2009) 8 NWLR (Pt.1144) 513.

The long and short of what is in contention in the issues 1, 2, and 3 and really at the base of this appeal on the part of the appellant that it is the presentation of the forged certificate that is relevant and there is no time frame to the application of Section 66 (1) (i) of the 1999 Constitution (as amended) when that issue of whether or not such a presentation took place. That what is in issue is not whether the ingredients of the offence of forgery have been established beyond reasonable doubt. On the other hand, the stance of the respondents 1st and 2nd is that in the absence of proof of any charge, trial and conviction of the 1st respondent for forgery as well as absence of proof of intent to use a forged document fraudulently or dishonestly as genuine, the 1st respondent could not be said to have presented a forged certificate to the 3rd respondent.
I daresay a thin lie does exist between the two divergent positions, and the Court below in resolving what side had the day accepted the view point of the 1st and 2nd respondents hence the recourse to this Court to proffer what really along the lines of the relevant

constitutional provisions and the Electoral Act stipulations is the correct stance. Section 66 (1) (i) of the 1999 Constitution of the Federal Republic of Nigeria prescribes thus:-
Section 66 (1)(i):
“No person shall be qualified for election to the Senate or the House of Representatives if –
(i) He has presented a forged certificate to the Independent National Electoral Commission.”
Then the Electoral Act, 2010 (as amended) as Section 31 (2), (5) and (6) provides as follows:-
Section 31 (2), (5) and (6) of the Electoral Act, 2010 (as amended):
“(2) The list or information submitted by each candidate shall be accompanied by an affidavit sworn to by the candidate at the High Court of a State indicating that he has fulfilled all the constitutional requirement for election into that office.
(5) A person who has reasonable grounds to believe that any information given by a candidate in the affidavit or any document submitted by that candidate is false may file a suit at the High Court of a State or Federal High Court against such person seeking a declaration that the information contained in the affidavit is false.
(6) If

the Court determines that any of the information contained in the affidavit or any document submitted by that candidate is false, the Court shall issue an order disqualifying the candidate from contesting the election.”
Taken in con therefore a consideration of Section 66 (1) (i) of the 1999 CFRN, the burden placed on a person who asserts that another presented a forged certificate to INEC is proof that the said certificate was forged and the consequent presentation to INEC of the said forged certificate. It is not difficult to agree with learned counsel for the appellant that in proof of the said presentation of the forged certificate to INEC what duty the person asserting the positive needs deal with is not the guilt of the person who made the presentation of the forgery but that he made the presentation in the first place and that the proof of the certificate being a forgery has been made beyond reasonable doubt.
That in simple terms is the intendment of the spirit of Section 66 (1) (i) CFRN and nothing more should be added to it since the words of the provision are simple, clear and unambiguous. Then to be said is that what required is in line

with the provisions of Section 135 (1) of the Evidence Act, 2011 which provides thus:-
“If the commission of a crime by a party to any proceedings is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.”
The interpretation of the above Evidence Act provision was showcased in the case of Nwobodo v Onoh (1984) 1 SCNLR 1 at 27 where the Supreme Court interpreted Section 137 (1) Evidence Act applicable in that instance which provisions are im pari materia with the current one of Section 135 (1) of the Evidence Act, 2011. This Court stated thus:-
In Nwobodo v Onoh (1984) 1 SCNLR 1 at 27 Paras. C – D it was held as follows;-
Specific allegations of crimes in the petition appear to be clear in that the commission of forgery, uttering and dereliction of official duty can properly be said to be the basis of foundation of the petition. Since the respondents denied the allegations, the commission of crimes by parties to the petition was directly in issue and consequently, Section 137 (1) of the Evidence Act came into play.
The section stipulates:
137(1): If the commission of a crime by a

Party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.”
See also Wali v Bafarawa (2004) 16 NWLR (Pt.898) 1 at 39 – 40, paras E – F; (1999) 3 NWLR (Pt.594) 257 – 260, paras B – C; Anozie v Obichere (2006) 8 NWLR (Pt.981) 140 at 153, paras. C – D.
Coming down to what this Court is faced with here and now, I see that what is relevant is the presentation of a forged certificate and sworn affidavit made by the 1st respondent in 2011. That it was made at another time different from the present circumstances does not take away the relevance of the presentation and the application of Section 66 (1) Of CFRN and Section 31 (5) and (6) of the Electoral Act, 2010. That is to say that a presentation of a forged certificate to INEC in the past by the 1st respondent can be raised at anytime whenever he seeks to contest for an election and the question is put if he had ever presented a forged certificate to INEC. To go on to answer the question in the negative because the matter first arose in an election no longer extant to beg the question and go outside the spirit and wordings of Section 66 (1)(i) CFRN

and Section 31(5) and (6) of the Electoral Act. It is a question relevant for all time and the answer when asked if such a presentation had been made is, yes. Anything different from that answer is contrary to the constitutional and Electoral Act provisions and the requirements of the law for disqualification are met. See Araka v Egbue (2003) 17 NWLR (Pt.848) 1 at 21; Ugba v Suswam (2013) 4 NWLR (Pt.1345) 427 at 474 – 475; Action Congress v INEC (2007) 12 NWLR (Pt.1048) 222 at 275 – 276.
For further emphasis, what is in issue that where in an election in the past a candidate as in this instance had presented a forged certificate to INEC, the fact that the candidate omitted to make reference to the said forced certificate he presented 2011, does not prevent a contender or anyone from raising the issue of that candidate’s past presentation of the flawed certificate to INEC and the Court using it to determine the disqualification of the candidate from contesting the present election of 2015. The reason is that the stipulations of Section 66 of CFRN have not contemplated or envisaged that the issue of the presentation is circumscribed to a particular election or period and remains

relevant perpetuity. For clarity I shall quote the question stated in the INEC form CF001 which stipulates as follows:-
“Have you ever presented a forged certificate to INEC”
It is in the light of the above and the clear provisions of the Constitution and the Electoral Act that it is not difficult to see that the Court below veered off the mark in its interpretation of the Constitutional provisions of Section 66 (1) (i). See Ojukwu v Obasanjo (2004) 12 NWLR (Pt.886) 169 at 209.

It is clear that the issues 1, 2 and 3 are to be resolved in favour of the appellant and I do so here and now,

ISSUE NO.4:
Whether the Court below was wrong in observing that the 1st respondent’s INEC Form CF001 satisfied the constitutional requirements in Section 65 (1) and (2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).

Learned counsel for the appellant said the case of the appellant at both Courts below is not that the 1st respondent did not meet the requirements stipulated Section 65 (1) and (2) of the 1999 Constitution (as amended) but that the case that 1st respondent presented forged certificate to INEC and made a false declaration on

oath in his INEC form by stating that he never presented a forged certificate to INEC. That the Court must confine itself to the issue raised before it and not otherwise. He cited Kraus Thompson Org. Ltd v. UNICAL (2004) 9 NWLR (Pt.879) 631 at 651, Ebba v Ogodo (2000) FWLR (Pt.27) 2094.

That there was no basis to file Reply to the averments in the counter-affidavit since no new issues were raised and so it cannot be said that the deposition in the counter affidavit were unchallenged. He referred to Unity Bank Plc. v. Bouari (2008) 7 NWLR 372 at 406 – 407 .

In response, learned counsel for the respondent stated that the matter of the disqualification of the 1st respondent contrary to Section 65 (1) and (2) of the Constitution was an issue before the Court and so the Court below was right to rule on it. He cited Ardo v Nyako (2014) All FWLR (Pt.744) 130 at 152 – 153; A. G. Leventis Nig. Plc v Akpu (2007) 17 NWLR (Pt.1063) 416 etc.

I am at one with the submissions of learned counsel for the appellant that the Court below acted wrongly in law when it held that Exhibit ‘T’ which is the judgment of the National/State Houses of Assembly Election Tribunal

which made a finding that the 1st respondent presented a forged certificate to INEC could not be relied upon because the 1st respondent was not a party to the election petition where the said judgment emanated from when the 2nd and 3rd respondents herein were parties in the said election petition.

A foray into the background shows that the election petition where Exhibit ‘T’ emanated from relates to the activities of the 2nd respondent relation to the appellant and the 1st respondent. After the 1st respondent withdrew his participation in the 2011 General Election as the House of Representatives candidate of the 2nd respondent after the issue of the forged certificate emerged, the 2nd respondent replaced the 1st respondent with the appellant. The finding in Exhibit T is an explanation or reason for that replacement done by 2nd respondent with appellant to the detriment of 1st respondent and the Election Tribunal ruled that there was a cogent and verifiable reason for the substitution made by the 2nd respondent. That judgment is relevant for the purpose of the

issues thrown up in the election petition that led to the current appeal as Exhibit ‘T’, the said judgment is one in rem and not in personam and so binding on 1st respondent for all time. See Ogboru v Ibori (2005) 13 NWLR (Pt. 942) 319 at 418 419; Osunrinde v Ajamogun (1992) 6 NWLR (Pt.246) 156 at 187.

The 2nd respondent also being privy to that judgment, Exhibit ‘T’ cannot now claim to be unaffected by it.

In the light of the foregoing and the better and fuller reasoning in the lead judgment of my lord, Sidi Dauda Bage JSC, I see great merit in this appeal which I also allow. I set aside the judgment of the Court of Appeal while I restore the judgment of the trial High Court. Appeal allowed as I abide by the consequential orders made,

CLARA BATA OGUNBIYI, J.S.C.: I have had the privilege of reading in draft the lead judgment of ny learned brother Dauda Bage, JSC. I agree that the appeal succeeds and should be allowed.

The genesis and the facts of this appeal are all stated comprehensively in the lead Judgment. My learned brother has also done justice to this appeal by taking the bull by the horn in upturning

the Judgment of the lower Court and restoring that of the High Court.

My brother has dealt adequately also with the two issues formulated in this appeal and I hereby adopt his judgment as mine. For purpose of emphasis, however, I wish to put in a word or two of nine.

I agree with my brother that the appeal can conveniently be determined on two issues, as against the eight issues formulated by the appellant which is a proliferation of multiple issues. My contribution in this appeal will zero on the 2nd issue which is reproduced hereunder:
2. Whether or not based on the finding of fact an issue of certificate forgery the 1st respondent stands disqualified from contesting the House of Representatives election for Ado Okopkwu and Ogbadibo Federal Constituency of Benue State.

The appellants case at the trial Court was predicated on presentation of forged certificate and making of false declaration on oath in breach of Section 66(1)(i) of the 1999 Constitution (as amended) and also Section 31(2), (5) and (6) of the Electoral Act, 2010 (as amended). The production of Section 66(1)(i) states as follows:-
“No person shall be qualified for election to the

Senate or the House of Representatives if –
a)
b)
c)
d)
e)
f)
g)
h)
i) He has presented a forged certificate to the Independent National Electoral Commission.
The learned counsel for the appellant in his submission argued that the objective for which the said Section 66(1)(i) is enacted is to prevent persons with dubious personality from occupying public offices; that any presentation of forged certificate whether in the present or past election must be looked into by a

competent Court of law as the allegation that a candidate had in a past election presented forged certificate to INEC. This undoubtedly would have created a doubt in character of the said candidate to occupy a public office; that time is not limited when issue of criminal imputation has been made against such a Person.
The finding by the Tribunal on the authenticity of the 1st respondent’s certificate a 6/9/2011 has put a seal against its use for any other purpose and at any tine till eternity. The same document which was declared as forged in 2011 could not have changed its nature in 2015. The said purported certificate was never competent for any other purpose whatsoever.
Section 31 of the Electoral Act 2010 (as amended) relates to the submission of list of candidates and their affidavits by political Parties. The reproduction of Subsections (2), (5) and (6) specifically are as follows:- “(2) The list or information submitted by each candidate shall be accompanied by an affidavit sworn to by the candidate at the High Court of a State, indicating that he has fulfilled all the Constitutional requirements for election into that office,<br< p=””

</br<

(3)..
(4) ..
(5) A person who has reasonable grounds to believe that any information given by a candidate in the affidavit or any document submitted by that candidate is false may file a suit at the High Court of a State or Federal High Court against such Person seeking a declaration that the information contained in the affidavit is false.
(6) If the Court determines that any of the information contained in the affidavit or any document submitted by that candidate is false, the Court shall issue an order disqualifying the candidate from contesting the election.
I seek to say at this juncture that on a community reading of Sections 66(1)(i) of the 1999 Constitution taken together with the provisions of Subsections (2), (5) and (6) of Section 31 of the Electoral Act 2010 (as amended) supra, it is clear that the outcome of issue 2 herein is obvious.
In other words, the said provisions are clear and unambiguous and hence the reason why their interpretation should not be inhibited. See the case of A-G

Ondo State V. A-G Ekiti State (2001) 17 NWLR (Pt. 743) 706 at 756 wherein this Court held and said:-
“It is certainly a cardinal principle of interpretation that where in their ordinary meaning the provisions are clear and unambiguous, effect must be given to them without resorting to any aid internal or external. It is the duty of the Court to interpret the words of the law maker as used. Those words may be ambiguous, but even if they are, the power and duty of the Court to travel outside them on a voyage of discovery are strictly limited. (See for example Magor and St. Mellon P.D.C. V. Newport Corporation (1951) 2 All E. L. R. 839, London Transport Executive V. Betts (1959) A C 231, Attorney General of Bendel State V. Attorney General of the Federation & Ors (1981) 10 SC 1 (1981) 12 NSCC. 314.
See also Fawehinmi V. IGP (2002) 7 NWLR (Pt. 767) 606 or 678 and A-G., Federation v. A-G Abia State (No. 2) (2002) 6 NWLR (Pt . 764) 542 at 794. To act contrary to Section 66(1)(i) is to encourage or perpetuate the occupation of public office by deceit and which will not undoubtedly be in the interest of public.
As rightly submitted by the

appellants counsel, the typical scenario flowing from the judgment of the Court below is where a candidate in an election after his presentation of a forged certificate to INEC, simply withdraws his candidature from the said election (wherein he is said to have presented a forged certificate INEC) and then wait to present the same certificate in a subsequent election without making any reference to the said forged certificate. The intention by this act is to contest the election. The resultant consequent effect and outcome are to undermine the objective of Section 66(1)(i) of the Constitution.
The Court below should have looked at the certificate which the 1st respondent presented to INEC in 2011. The failure by the 1st respondent to include the National Diploma certificate in the INEC’s form CF001, 2015 General election, is not to say that (he) 1st respondent did not commit forgery.
For all intents and purposes therefore, the 1st respondent has no business to do with the Election held in 2015. He was done and finished with since 2011.

My learned brother Bage, JSC has done justice to the issues raised in this appeal. With the foregoing few

words of mine and more particularly on the fuller reasoning of my brother in the lead judgment, I also find merit in this appeal and I hereby allow same.

The appeal succeeds and I abide by all the orders made therein the lead judgment.

CHIMA CENTUS NWEZE, J.S.C.: I had the advantage of reading the draft of the leading judgment which my Lord, Bage, JSC, just delivered now. I endorse the conclusion that this appeal, being wholly, meritorious, ought to succeed. Appeal allowed. I abide by the consequential orders in the leading judgment.

AMINA ADAMU AUGIE, J.S.C.: I have had a preview of the lead Judgment delivered by my learned brother – Bage. JSC, and I agree with his reasoning and conclusion

He addressed all the issues canvassed in the Appeal, and I intend to focus my attention on the issue of the standard of proof required.

The Appellant presented the Federal High Court [trial Court] with four questions for determination and he sought eleven Reliefs including a declaration that the first Respondent was disqualified from presenting himself for the primaries of second Respondent by

virtue of the presentation of forged document to the third Respondent for the Ado, Okpokwu and Ogbadibo federal Constituency of Benue State

In his Judgment delivered on 20/5/2015, the learned trial Judge, Ademola J. found that first Respondent presented a forged certificate to the third Respondent (INEC) for 2011 General Election after winning the second Respondents 2011 Primary Election. He went on to say-
The Courts findings/conclusions are based on paragraphs 8-23 of Plaintiffs (Appellants) Affidavit in support of Originating Summons with Exhibit A-V. Further Affidavit No. 2 in support of Originating Summonswith Exhibits A3 & A4 particularly Exhibit T and A3. Exhibit T the judgment of National/State House of Assembly Election Tribunal for Makurdi, Benue State, delivered on 6/9/2011 on pages 57 & 58 are conclusive on this issue. Exhibit A3 is a certified true copy of letter dated 22/12/2014 emanating from Dr Suleiman S. Buba, Registrar Federal Polytechnic, Mubi, to Matthias O. Emeriba, Esq. confirming certificate forgery by Mr Aboh Christian Adabah (first Respondent herein) in respect of his certificate

No. FPM 000293 obtained in 1985. See Kakih v. PDP (2014) 15 NWLR (Pt 1430) 374 SC. Exhibit T & A3 are self-explanatory, positive and devoid of any ambiguity. The conduct of the (first Respondent) . is a clear breach of Paragraph 22(d) of the (second Respondent)s Electoral Guidelines. The (first Respondent) is disqualified or ought to have been disqualified from contesting (second Respondents) Primary election. The (first Respondent)s defence, if any, was non-existent or at best feeble on Exhibit A3. The (Appellant) has proved forgery against (first Respondent) beyond reasonable doubt in the circumstances. See Kakih v PDP (2014) 15 NWLR (Pt 1430) 374 SC.

At the end of the day, the trial Court resolved the questions in favour of the Appellant, and granted all the reliefs sought. It also ordered the third Respondent (INEC) to cancel the Certificate of Return issued to first Respondent; to issue a Certificate of Return to the Appellant as the Hon. Member representing the said Federal Constituency; and-
That [first Respondent} Mr. Christian Adabah Abuh, be handed over to the Security Agencies for prosecution before a

Court of competent jurisdiction in light of Exhibits T & A3.

Dissatisfied, the first and second Respondents appealed to the Court below with Notice of Appeal containing thirteen Grounds of Appeal.

They distilled eight issues for Determination at the Court below and Issue Five questions whether on the state of affidavit evidence adduced before the trial Court, that Court was right in finding that the 1st Appellant [first Respondent herein] committed perjury and forgery and/or presented forged certificate to [INEC] third Respondent herein. In resolving the Issue against the Appellant, the Court below stated –
The question to be asked is did the trial Court from the affidavit evidence and documents placed before it, found as a fact that the 1st Appellant [first Respondent herein] presented a false document in INEC in the 2015 General election I ask this question because from the Record the allegation of forgery against [him] was in relation to the General Election of 2011, when he claimed he have obtained a National Diploma Certificate in 1985, from the Federal Polytechnic, Mubi, which assertion was found to be false by the Institution. Forgery

is a forging of a false document to represent a genuine document. Forgery is a criminal offence, which requires proof beyond reasonable doubt. A Petitioner, who alleges that the winner of an election presented a forged certificate to INEC is required to prove the assertion beyond reasonable doubt— Forgery means fraudulently making or altering anything especially a document to make falsely for the purpose of fraud— Given, therefore, that the Application form CF001 of the [first Respondent] in the 2011 (sic) was false, was it made in order that it may be used as genuine Clearly, it requires proof of an intent on the part of the [first Respondent] of the false document that it shall be used as genuine. For the allegation of forgery to be sustained, the [First Respondent] must have been charged, tried and convicted by a competent Court of Law. Mere stating that he obtained National Diploma Certificate, which was found to be false is not enough to conclude that he committed forgery.

It concluded that if the trial Court had averted its mind to the issue of 2015 (General Election, which was the matter before it., and properly evaluated the evidence before

it, it would have arrived at a different conclusion with regard to the said criminal allegation of forgery.

The Appellant appealed to this Court with a Notice of Appeal that has nine Grounds of Appeal. He distilled eight issues therefrom.

Issue 1 questions whether the Court below was right to hold that the first Respondent must have been charged, tried and convicted of forgery by a competent Court of law for him to be liable for the presentation of forged certificate to INEC under Section 66(1) (i) of the Constitution (as amended) and making a false declaration on oath under Section 31(2), (5)and (6) of the Electoral Act (as amended).

The Appellant’s contention is that there is nowhere in Section 66(1)(i) of the Constitution (as amended) and Section 31 (2), (5)& (6) of the Electoral Act (as amended), that it is stated or envisaged that a person, who asserted that another person presented forged certificate to INEC or gives false information on oath, should show that the person, who carried them out, was first charged, tried and convicted by a competent Court of law for forgery of the said certificate before he could be held liable for

violation of the said provisions of the law.

He argued that the implication of the said decision is that even though there is evidence that a person presented forged certificate to INEC or made false declaration on oath, but because he has not been previously charged, tried or convicted by a competent Court of Law, he cannot be liable for violating the aforesaid provisions of the Law.

He posed a question that assuming it comes to public knowledge that a person presented forged certificate to INEC before an election and such person had been previously charged, tried or convicted, at what time will he be charged tried and convicted before election. He submitted that before the person is charged, tried and convicted the period of filing pre and post-election matters would have elapsed.

The first and second Respondents, however, argued that when first Respondent won the Primaries in 2014 and emerged a candidate for the 2015 General Election, the Appellant took out this action and there is no issue of forged certificate being presented to INEC by first Respondent in this action; rather it is an allegation that in 2011, the first Respondent

presented a forged certificate to second Respondent an allegation that was never proved in 2011 or at any time thereafter.

They further argued that for forgery or perjury to be established, he ought to have initiated an action prior to the 2011 General Election and obtain a declaration that in 2011, the first Respondent submitted a forged certificate or that his Affidavit contained false statement in line with the procedure slated in Section 31(5) & (6) of the Electoral Act; that his ipse dixit or any letter allegedly confirming certificate forgery cannot take the place of the requisite Court action and the declaration.

They referred this Court to its decision in Action Congress & Anor V. INEC (2007) 12 NWLR (Pt. 1048) 220 and submitted that the commission of a crime cannot be proved or established by mere allegation, save through trial and conviction or declaration by a Court of Law that a person has committed a crime, which is why the Court below rightly held that if the absence of a trial, conviction and/or proof of knowledge that the presented document was going to be used fraudulently or dishonestly as genuine, the Appellant failed to prove

forgery against the first Respondent; and that the position of the Court below cannot be faulted in view of the fact that forgery or perjury must be pleaded and proved by witness evidence. and not by affidavit.

The Appellant countered in his Reply Brief that the said issue of Section 31(5) and (6) of the Electoral Act arose from the answer that the first Respondent gave to the question in his INEC Form CF001 for the 2015 General Election which is whether he had ever presented forged certificate to INEC; that in the circumstances of this case, what is required is not a previous Order of Court to debunk his said answer, but evidence that what he said as answer to the said question is false, which is exactly what he did, and what is affirmed by the trial Court.

He submitted that Action Congress & Anor v INEC (supra) which they relied upon, is grossly inapplicable to this case as the issue of the presentation of forged certificate to INEC were not directly the issues in that case, which relates to the power of INEC to unilaterally disqualify a candidate, whereas this case touches on disqualification by a competent Court of law; and that there are

completely poles apart.

Now, Section 66 of the 1999 Constitution (as amended) covers disqualifications, and it specifically provides in Subsection (1) (i) that no person shall be qualified for election to the Senate or the House of Representatives if he has presented a forged certificate to INEC. Section 31 (5) of the Electoral Act 2010 (as amended) provides that-
Any person who has reasonable grounds to believe that any information given by a candidate in the affidavit or any document submitted by that candidate is false may file a suit at the Federal High Court, High Court of a State or FCT against such person seeking a declaration that the information contained in the affidavit is false.
Subsection (6) of the said Section 31 of the Electoral Act provides:
If the Court determines that any of the information contained in the affidavit is false, the Court shall issue an order disqualifying the candidate from contesting the election.
So, by the constitutional provision, any person who has presented a forged certificate to INEC is disqualified from contesting election into the National Assembly. By the statutory provisions, any

person, who has reasonable grounds to believe that a candidate has given false information in the processes filed for an election, may file a suit against him, and if the Court determines that the information is false, it shall issue an order disqualifying him from contesting the election.
Apparently, the constitutional and statutory provisions intersect in this case, where there is a definite finding that the first Respondent presented a forged certificate to qualify for the 2011 General Election. He dropped out of the race for that election, but put himself forward for the 2015 General Election. To this end, he filled out the INEC Form CF 001 that contains the question (Question No 8) Have you ever presented a forged certificate to INEC In answer he said No.
The word ever simply means at any time- see Websters Comprehensive Dictionary. Had the first Respondent, at any time, presented a forged certificate to INEC That was the question before the Court. and the Court below blindsided itself when it went into the issue of whether the Appellant established that the forged certificate that he used for the

2011 Election was intended for the 2011 Election, and whether he intended to use the false document as a genuine one.
Even if the allegation of forgery was in issue, the Court below fell into serious error when it held that for the allegation to be proved, the first Respondent must have been charged, tried and convicted by a competent Court of law. That is not the correct position of the law.
By Section 135(1) of the Evidence Act, 2011, if the commission of a crime by a party is directly in issue in any civil or criminal proceeding, it must be proved beyond reasonable doubt. It is settled that the standard of proof beyond reasonable doubt is not the same as saying proof beyond the shadow of any doubt that the person is guilty. See Bakare V. State (1987) 3 SC, wherein Oputa. JSC, observed –
“Absolute certainty is impossible in any human adventure including the administration of criminal justice. Proof beyond reasonable doubt means just what it says. It does not admit of plausible and fanciful possibilities but it does admit of a high degree of probability. As Denning J. (as he then was) observed in Miller v. Minister of Pensions (1947) 2 All E.R

373:- The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong as to leave only a remote possibility in his favour, which can be dismissed with the sentence of course it is possible but not in the least probable, the case is proved beyond reasonable doubt..”
That is the law. It has not changed, and is the same in election cases – see Ikpeazu V. Otti & Ors (2016) LPELR-40055 (SC) wherein this Court clearly stated that where in an election petition, the Petitioner makes an allegation of crime against a Respondent, Section 135(1) of the Evidence Act, 2011, imposes strict burden on the said Petitioner to prove the crime beyond reasonable doubt, if not his petition will fail.
In my view, to insist that the first Respondent must be charged, tried and convicted before an allegation of forgery is proved is to take an extreme position as regards Section 135(1) of the Evidence Act, which simply talks of proof beyond reasonable doubt; nothing more.
But as it turns out, the issue for determination in this case boils down to whether the

Appellant had reasonable grounds to believe that the answer given by the first Respondent to the said question is false.
As the Appellant rightly submitted, there is nowhere in the said Section 66(1) (i) of the Constitution, and Sections 31(5) & (6) of the Electoral Act that it is stated or envisaged that he must show that the first Respondent was first charged, tried or convicted before the Court determines that the answer he gave in the said Form CF001 is false.
There is evidence that the first Respondent presented a forged certificate for the 2011 Election, and in answering NO to the question have you ever presented a forged certificate to INEC He gave false information to INEC in its Form CF 001, and the Appellant did what he was expected to do in the circumstances; file the Suit against him and leave it to the Court to determine whether the information is false.
The trial Court determined the question in his favour, however, the Court below obfuscated matters when it went beyond the question to draw the distinction between the 2011 and 2015 General Elections and come up with an extreme view of the standard of proof required.

It is

for this and other reasons in the lead Judgment that I also allow the Appeal and set aside the decision of the Court below.

Appearances

Dr. Alex A. Izinyon, SAN with him, B.K. Abu, Esq., M. Emeribe, Esq., E. Oghojafor, Esq. and L.O. Fagbemi, Esq. For Appellant

AND

S.I. Ameh, SAN with him, Dr. Soni Ajala, Mrs. Comfort Ocheme, R.O. Adakole, J.O. Oche, E.A. Ekoja, A.G. Ameh, D.M. Ikoko, O.D. Sunday, Miss I U. Emmanuel,
Z. Akubo, Miss C.O. Sabo, Ekele Atadoga, Miss R.O. Mohammed, H.I. Iheme, Musa Etubi, Miss Constance O. Afekhai and Mrs. Nadia Oka for 1st & 2nd Respondents.

T.M. Inuwa with him, J. Arabs (Mrs.), W. Kuku (Mrs.), R. Aminu (Mrs.) A.N. Makwe (Mrs.) M. Ibrahim (Mrs.), B.M. Abubakar and C.C. Nnamah (Miss) for the 3rd Respondent. For Respondent

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