IBEZIM v. ELEBEKE & ORS (2021)

IBEZIM v. ELEBEKE & ORS

(2021)LCN/15005(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Saturday, February 06, 2021

CA/A/1085/2020

RATIO

ELECTION MATTER: QUALIFICATION OF A CANDIDATE FOR AN ELECTION TO THE NATIONAL ASSEMBLY

In resolving this issue, let me state that qualification of a candidate for an election to the National Assembly is one of the cardinal demands of the 1999 Constitution of the Federal Republic of Nigeria (as amended). The Constitution at Sections 65 and 66 provides expressly as follows:
“65.- (1) Subject to the provisions of Section 66 of this Constitution, a person shall be qualified for election as a member of –
(a) the Senate, if he is a citizen of Nigeria and has attained the age of thirty-five years; and
(b) the House of Representatives, if he is a citizen of Nigeria and has attained the age of twenty-five years;
(2) A Person shall be qualified for election under subsection (1) of this section if –
(a) he has been educated up to at least School certificate or its equivalent; and
(b) he is a member of a political party and is sponsored by that party.
66. (1) No person shall be qualified for election to the Senate or the House of Representatives if –
(a) …
(b) …
(c) …
(d) …
(e) …
(g) …
(h) …
(i) he has presented a forged certificate to the Independent National Electoral Commission.”

The Electoral Act 2010 (as amended) then created jurisdiction for the Court to intervene in matters of qualification or disqualification of a candidate for a general election. Section 31 of the Electoral Act, (ibid), provides thus:
31. (1) Every political party shall, not later than 60 days before the date appointed for a general election under the provisions of this Act, submit to the Commission, in the prescribed forms, the list of the candidates the party proposes to sponsor at the elections, provided that the Commission shall not reject or disqualify candidate(s) for any reason whatsoever.

(2) The list or information submitted by each candidate shall be accompanied by an affidavit sworn to by the candidate at the Federal High Court of a State or Federal Capital Territory, indicating that he has fulfilled all the constitutional requirements for election into that office.
(3) The Commission shall, within 7 days of the receipt of the personal particulars of the candidate public same in the constituency where the candidate intends to contest the election.
(4) A person may apply to the Commission for a copy of nomination form, affidavit and any other document submitted by a candidate at the election and the Commission shall, upon payment of a prescribed fee, issue such person with a certified copy of the documents within 14 days.
(5) Any person who has reasonable grounds to believe that any information given by a candidate in the affidavit or any documents submitted by that candidate is false, may file a suit at the Federal High Court, High Court of a State of FCT against such person seeking a declaration that the information contained in the affidavit is false.
(6) If the Court determine 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.
(7) A candidate for an election shall, at the time of submitting the prescribed form, furnish the Commission with an identifiable address in the State where he intends to contest the election at which address all documents and Court processes from either the Commission or any other person shall be served on him.
(8) A political party which presents to the Commission the name of a candidate who does not meet the qualifications stipulated in this section, commits an offence and is liable on conviction to a maximum fine or N500,000.00. PER STEPHEN JONAH ADAH, J.C.A.

ELECTION MATTER: HOW ENTRIES SHOULD BE MADE IN ANY GENERAL ELECTION

The fact remains that any candidate that wants to supply information to the 3rd Respondent for any general election must be diligent and strictly faultless in respect of the entries made therein. Arrangement of names of an individual is such a serious venture that candidates must be diligent in doing that. If a name of a person is misarranged, he tells a lie about his name. Conventionally, a person gives his first name, followed by his middle name and his last name. When one turns to write his names as in American system to begin with his last name, he will follow it up with his first name and middle name. If the names are written out of turn or out of order, the name will be manifesting names of a person other than the person claiming it. PER STEPHEN JONAH ADAH, J.C.A.

EVIDENCE: STANDARD OF PROOF WHEN AN ALLEGATION IS CRIMINAL IN NATURE

The allegation against the appellant of giving false information on oath is criminal in nature. The law requires that it be proved beyond reasonable doubt. Section 135 of the Evidence Act 2011 provides thus:
“135 (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. (2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to Section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action”.
On this provision, see the cases of Mohammed v. Wammako and Ors. (2018) 7 NWLR (Pt. 1619) 573 at 588 and 591, Ikpeazu v. Otti (2016) All FWLR (Pt. 833) 1946, Saleh v. Abah (2018) All FWLR (Pt. 933) 944, Maihaja v. Gaidam (2018) 4 NWLR (Pt. 1610) 454 at 486 – 489. It is trite that he who asserts has the burden to prove the assertion or allegation and if the allegation or assertion is criminal in nature it must be proved beyond reasonable doubt by the person asserting. See the case of Zaccala v. Edosa and Anor. (2018) All FWLR (Pt. 926) 1 at 34 per the lead judgment of his lordship, Eko, JSC, to the effect that proof beyond reasonable doubt is not established by mere assertion. See the case of Maihaja v. Gaidam (2018) 4 NWLR (Pt. 1610) 545 at 486 – 489. PER STEPHEN JONAH ADAH, J.C.A.

Before Our Lordships:

Abubakar Datti Yahaya Justice of the Court of Appeal

Uchechukwu Onyemenam Justice of the Court of Appeal

Stephen Jonah Adah Justice of the Court of Appeal

Between

CHUKWUMA FRANCIS IBEZIM APPELANT(S)

And

ASOMUGHA TONY ELEBEKE 2. ALL PROGRESSIVES CONGRESS (APC) 3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) 4. SENATOR IFEANYI GODWIN ARARUME RESPONDENT(S)

STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the Federal High Court, Abuja, delivered on the 4th December, 2020, coram: I. E. Ekwo, J.

By an Amended Originating Summons filed on the 6th day of October, 2020, the Plaintiff now 1st Respondent approached the trial Court for the determination of the following questions:
1. Whether upon the construction of Sections 66 {1}{i} of the Constitution of the Federal Republic of Nigeria, 1999 {as amended}, Section 31 {5} and {6} of the Electoral Act {as amended}, Article 7 of the All Progressive Congress Guidelines for nomination of candidates for elections- 2019, the 1st Respondent is qualified or eligible for nomination to contest Imo North Senatorial Bye-Election having made false statement/declaration in the affidavit and documents he submitted to the 2nd and 3rd Respondents, wherein he presented falsified and uncertified photocopies of West Africa Examination Council {WAEC} Certificate.
2. Whether having regard to Sections 66 {1}{i} of the Constitution of the Federal Republic of Nigeria, 1999 {as amended}, Section 31 {5} and {6} of the Electoral Act {as amended}

Article 7 of the All Progressive Congress Guidelines for nomination of candidates for elections- 2019, the 1st Respondent is qualified or eligible for nomination to contest Imo Senatorial Bye-Election, having made false statements/declarations in the affidavit and documents he submitted to the 3rd Respondent, wherein he presented and bears two {2} different and irreconcilable names, to wit; “Ibezim, Chukwuma Frank” and Ibezim Francis Chukwuma”.
3. Whether having regard to Sections 66 {1}{i} of the Constitution of the Federal Republic of Nigeria, 1999 {as amended}, Section 31 {5} and {6} of the Electoral Act {as amended}, Article 7 of the All Progressive Congress Guidelines for nomination of candidates for elections- 2019, the 1st Respondent is qualified or eligible for nomination to contest Imo Senatorial Bye- Election, having made false statements/declarations in the affidavit and documents he submitted to the 3rd Respondent, in which he signed the statutory declaration of age for himself as the declarant/deponent.

Upon the determination of the above questions, the Plaintiff/1st Respondent prayed the

Court to grant the following reliefs:
1. A Declaration that the 1st Respondent is not qualified/eligible for nomination to contest Imo North Senatorial Bye-Election having made false statements/declarations in the affidavit and documents he submitted to the 3rd Respondent for the purpose of contesting Imo North Senatorial Bye- Election.
2. An Order of injunction restraining the 3rd Respondent from accepting the nomination of the 1st Respondent as the 2nd Respondent candidate for Imo North Senatorial Bye- Election.
3. An Order directing the 2nd Respondent to withdraw the nomination of the 1st Respondent to the 3rd Respondent and substitute with another qualified candidate.

The said Amended Originating Summons was supported by a 26-paragraph affidavit deposed to by the Plaintiff/1st Respondent, and 31 Exhibits annexed marked as Exhibits A1 – A31. The Respondent in opposition filed a counter affidavit along with a written address, on receipt of the counter-affidavit, the 1st Respondent also deposed to a further and better affidavit through one Tolulope Oke.

At the close of hearing, the trial Court in a considered judgment delivered judgment in favor of the Plaintiff/1st Respondent.

Dissatisfied with the said judgment of the trial Court, the appellant filed a Notice of Appeal to this Court on the 8th December, 2020 and an Amended Notice of Appeal filed on 7th January, 2021. The record was transmitted to this Court on the 10th December, 2020.

In line with rules and practice of this Court, parties filed and exchanged their respective Briefs of Argument.

The Appellant distilled four issues for determination of this Appeal in the Appellant’s Brief of Argument filed on the 7th January, 2021. These issues are:
1. Whether the lower Court was in error when it failed to hold that the 1st Respondent’s allegations against the appellant of presenting false affidavit and documents to the 2nd and 3rd Respondents must be proved beyond reasonable doubt {Ground 1}.
2. Whether the lower Court was in error when in the absence of cogent and credible evidence from the 1st Respondent it upheld the allegations of the 1st respondent against the appellant and proceeded to hold that the 1st Respondent established his allegations against the appellant. {Grounds 3, 4, 5, 6, 7 AND 8}.

Whether exhibits A21, A22, A23, A25, A26, A27, A28 and A30 are documentary hearsay evidence which were inadmissible in any or at the least bereft of any probative value and upon which the lower Court was not entitled to receive in evidence or accord probative value. {Ground 2}.
4. Whether having regards to the reliefs of the 1st Respondent and the totality of his case, the lower Court acted without jurisdiction when it entered judgment in favor the 1st Respondent {Ground 9}.

In response to the issues raised by the appellant, the 1st Respondent formulated two issues for the determination of this appeal in his Brief of Argument filed on the 8th January, 2021. I shall proceed to reproduce same:
1. Whether from the facts and circumstances of this case as well as the affidavits evidence presented, the lower Court was right when it held that the appellant was not qualified to contest the Imo North Senatorial Bye Election?
2. Whether the lower Court acted without jurisdiction and breached Section 285 {9} of the 1999 Constitution of the Federal Republic of Nigeria {as amended}.

In response to the issues raised by the Appellant, the 4th Respondent also formulated two issues, same as the 1st Respondent but couched differently for the determination of this Appeal in his Brief of Argument filed also on the 8th January, 2021. I shall proceed to reproduce same as well:
1. Whether having regards to the evidence and circumstances of this case the trial Court was right in holding that the information contained in the affidavit and documents submitted by the appellant to the 2nd and 3rd Defendants is false and in issuing an order disqualifying the appellant from contesting the Imo North Senatorial Bye Election? (Grounds 1, 2, 3, 4, 5, 6, 7 and 8).
2. Whether this suit was statute barred and in breach of Section 285 {9} of the Constitution of the Federal Republic of Nigeria 1999 {as amended} (Ground 9).

A look at the issues distilled by the parties will show, having regards to the grounds of appeal that the crux of the appeal is on whether the lower Court was right in holding that the appellant was not qualified to contest the Imo North Senatorial Bye Election.

The second prominent issue is whether based on Section 285(9) of the 1999 Constitution of Nigeria,

the lower Court had jurisdiction to entertain the suit.

These two issues when determined will resolve all the grievances of the appellant in this appeal. I shall therefore, use the two issues nominated by the 1st Respondent to determine this appeal. I shall start with issue one as earlier identified.

Issue One:
This issue is – whether from the facts and circumstances of this case as well as the affidavits evidence presented, the lower Court was right when it held that the appellant was not qualified to contest the Imo North Senatorial Bye Election?

In arguing the first issue, learned counsel to the appellant submitted that the lower Court’s failure to direct itself on the standard of proof to be borne by the 1st Respondent in proving the allegations against the Appellant, namely, that he made false statement/declarations in the affidavit and documents he submitted to the 3rd respondent, INEC, and this failure caused the lower Court to rest its judgment on the alleged failure of the appellant to controvert the allegations of the 1st respondent. The allegations of making false statement/declaration in affidavit and documents

submitted to the 3rd Respondent, INEC are criminal allegations and the standard of proof is proof beyond reasonable doubt. And proof beyond reasonable doubt is not attained by the alleged failure of the appellant to controvert the case of the 1st respondent. That with the greatest respect is a civil standard of proof in cases where declarations are not claimed. Counsel relied on OWOR V. CHRISTOPHER & ORS. (2008) LPELR-4813(CA); ABUBAKAR V. I.N.E.C (2020) 12 N.W.L.R. (PT. 1737); MAIHAJA V. GAIDAM (2017) LPELR- 42474(SC); AUDU V. INEC (NO. 2) (2010) 13 NWLR (PT. 1212) 456 @507 PARAS E-F. Learned counsel to the Appellant further submitted that the foregoing findings of the lower Court clearly show that it did not apply the criminal standard of proof in its resolution of the case made by the 1st Respondent against the appellant. It deployed the civil standard of proof in relieving the 1st Respondent of the standard of proof beyond reasonable doubt on his criminal allegations with cogent compelling and credible evidence. The only evidence before the Court was the second hand or hearsay evidence of the 1st respondent. Counsel relied on SHANDE V. STATE (2005)12 MJSC

152, (2005) LPELR-3035 (SC); ADEYEMI V. STATE (1991) LPELR-172 (SC); PDP V. EKEAGBARA & ORS (2016) LPELR-40849 (CA); C.O.P V. AMUTA (2017) LPELR-41386 (SC). Learned counsel to the 1st Respondent submitted that the lower Court also failed to appreciate that the 1st Respondent’s claim being declaratory in nature, he bore the burden to establish his claim without reliance on admission by the Appellant. Counsel relied on DIAMOND BANK PLC. V. ALHAJI USMAN YAHAYA & ANOR; AYANRU V. MANDILAS LTD. (2007) 10 NWLR (PT. 1043) 462; (2007) LPELR-670 AT 16-17 PARAS E-C; CONGRESS FOR PROGRESSIVE CHANGE {CPC} V. INDEPENDENT NATIONAL ELECTORAL COMMISSION (2011)18 NWLR (PT. 1279)493 AT 538. Appellant’s counsel submitted that the 1st Respondent was not the maker of any of the Exhibits A21, A22, A23, A25, A26, A27, A28 and A30 attached to the affidavit in support of the amended originating summons but the entirety of the evidence arrayed against the Appellant and wholly relied on by the lower Court rested on what 1st respondent deduced and conjectured from his “perusing the certified true copies” of the Appellants documents made available to him by

INEC, the 3rd Respondent. Counsel relied on ABUBAKAR V. INEC (SUPRA); OSIGWELEM V. INEC (2011) 9 NWLR (PT. 1253) 425AT 451; BUHARI V. OBASANJO (2005) 13 NWLR (PT 941) 1 AT 317; HASHIDU V. GOJE (2003) 15 NWLR (PT. 843) 352; MAIHAJA V. GAIDAM (2017) LPELR-4274 (SC); JOLAYEMI & ORS V. OLAOYE & ANOR (2004) LPELR-1625 (SC); EDOZIEM V. EDOZIEM & ANOR (2015) LPELR-25659 (CA); ORISA V. STATE (2018) LPELR- 43896 (SC); STATE V. AIBANGBEE & ANOR (1988) LPELR-3208 (SC).

Learned counsel for the appellant submitted that the misguided grouse of the 1st Respondent was in the abbreviation of the name Francis to Frank. But he did not avert to the maxim that by whatever name you call a rose it will smell as a rose and look exactly like a rose. From Wikipedia. Org it is clearly stated as follows “The name Frank is a common diminutive for Francis…” Counsel relied on ABUBAKAR V. INEC (2020) 12 NWLR (PT. 1737); DANKWAMBO V. ABUBAKAR & ORS (2015) LPELR-25716 (SC); AGI V. PDP & ORS (2016) LPELR-42578 (SC). He urged the Court to resolve this issue in favour of the appellant.

Learned Counsel to the 1st Respondent submitted that the three

results were one and the same devoid of discrepancies. The Appellant cannot make a new case on appeal. It is trite law that parties must be consistent in the presentation of their cases and not to say one thing at the trial Court and say another at the Appeal Court. Counsel relied on ADEOGUN V. FASHOGBON (2011) 8 NWLR (PT 1250) 427@454 PARA G; AJIDE V. KELANI (1985) 3 NWLR (PT. 12) 248 @ 269 PARA D; SALIU V. STATE (2018) 10 NWLR (PT. 1627) 251 @ 259 PARA B; OSHATOBA V. OLUJITAN (2000) 5 NWLR (PT. 655) 159; AWETO V. FRN (2018) 8 NWLR (PT 1622) 527 @ 541 PARAS B-C; ADEOKIN RECORDS V. M.C.S.N. (LTD/GTE) (2018) 15 NWLR (PT. 1643) 550 @561 PARAS B-D. Learned counsel to the 1st Respondent submitted that the Constitution, the Electoral Act and the Article of the 2nd Defendant on nomination of candidates for Election 2019 that false statement or forged certificates as the case maybe, submitted to the 3rd defendant automatically disqualifies such a candidate and the Court has been given a blank cheque to disqualify such a candidate upon an application by anybody who has reasonable ground to believe such a false or falsified information/declaration or document.

Counsel relied on KAKIH V. PDP (2014) 15 NWLR (PT. 1430) 374@ 430 PARAS C-E; MODIBBO V. USMAN (2020) 3 NWLR (PT.1712) 470; AGI V. PDP (2017) 17 NWLR (PT. 1595)386; BALLANTYNE V. AYI & ORS (2011) LPELR-8825 (CA); THE CAPELLA (1761-1773) All E.R. REPRINT 433; BROSSETTE MANUFACTURING NIG. LTD V. M/S OLA ILEMOBOLA LTD (2007); All FWLR (PT.379) 1346; SOLANKE V. ABED (1962) 1 All NLR 220; SALEH V. ABAH (2017)12 NWLR (PT. 1578) 100 @ 135 PARAS A-E. Learned counsel to the Respondent further submitted that the proof must be made beyond reasonable doubt in a criminal allegation certainly does not mean proof beyond every shadow of doubt. It is enough if it has been demonstrated primarily before the Court that the alleged crime or misconduct complained of did in fact take place. Counsel relied on ADEPOJU V. STATE (2018) 15 NWLR (PT.1641) 103 @ 122 PARAS A-D; MILLER V. MINISTER OF PENSION (1947) 2 ALL ERP P.374, PARA H; LADGROUP V. FBN PLC (2017) 12 NWLR (PT. 1580) 464 @ 392- 393 PARAS G-E; OKONKWO V. CCB (NIG) PLC (2003) & NWLR (PT. 822) 347; BURAIMOH V. BAMGBOSE (1989) 3 NWLR (109) 352; EZEIGWE V. NWAWULU (2010) 4 NWLR (PT. 1183) 159 @ 191 PARA C;

GOVT, KANO STATE V. EFCC (2018) 9 NWLR (PT. 1625) 443 @ 461 PARA. H; OKAFOR V. NNAIFE (1987) 4 NWLR (PT. 64) 129 @ 137 PARAS C-E. Learned counsel to the 1st Respondent submitted that documents such as Exhibits A21- A30 presented before the lower Court are meant to be thoroughly scrutinized by the Court to establish the truth or otherwise of the allegation or contention made in the case brought before it. Counsel relied on AGBAISI v. EBIKOREFE (1997) 4 NWLR (PT. 502) 630; ABIODUN V. A.G. FEDERATION (2007) 15 NWLR (PT. 1057) 359; ABUBAKAR V. INEC (2020) 12 NWLR (PT. 1737); DANKWAMBO V. ABUBAKAR & ORS (2015) LPELR-25716(SC). He urged the Court that this issue be resolved in favor of the 1st Respondent.

Learned counsel to the 4th Respondent in his Brief of Argument submitted that the Appellant having admitted (although it is too obvious to even deny) that the three results (Exhibits A26, A27 and A28) presented by him have different results therefore the case of the 1st Respondent on that score is deemed established. It is trite law that facts admitted need no further proof. Counsel relied on ADEOGUN V. FASOGBON (2011) 8 NWLR (PT. 1250) 427@454 PARA G; AJIDE V. KELANI (1985) 3 NWLR (PT. 12)

248 @269 PARA D; AWETO V. FRN (2018) 8 NWLR (PT. 1622) 527 @541 PARAS B-C; NNPC V. CLIFCO (NIG) LTD (2011) 10 NWLR (PT.1255) 209; IKARE COMMUNITY BANK (NIG) LTD V. ADEMUWAGUN (2005) 7 NWLR (PT. 924) 275; OGOLO V. FUBARA (2003) 11 NWLR (PT.831) 231; ADELEKE V. ASENGA (1986) 3 NWLR (PT. 30) 575; NNONYE V. ANYICHIE (1989) 2 NWLR (PT.10)110; ADEOKIN RECORDS V. M. C. S. N. (LTD/GTE) (2018) 15 NWLR (PT. 1643) 550 PARA B-D; KAKIH V. PDP (2014) 15 NWLR (PT.1430) 374 @430 PARAS C-E; MODIBBO V. USMAN (2020) 3 NWLR (PT. 1712) 470. Counsel further submitted that it is trite law that for a party to succeed on claims for disqualification of any candidate in an election, such a party has a duty to demonstrate that the provision of the constitution has been breached or that the candidate has made false declaration with the aim of circumventing the constitutional requirements for contest in the particular office. Counsel relied on AGI V. PDP (2017) 17 NWLR (PT. 1595) 386; SECTION 151 OF THE EVIDENCE ACT, CAP E14, LFN, 2004; All PROGRESSIVE CONGRESS V. KARFI (2018) 6 NWLR (PT. 1616) 479,512; SALEH V. ABAH (2017) 12 NWLR (PT. 1578) 100 @ 135 PARAS A-E;

MILLER V. MINISTER OF PENSION (1947) 2 ALLER P. 372 @373; ADEPOJU V. STATE (2018) 15 NWLR (PT. 1641) 103 @122 PARAS A-D; BALARABE SHEHU KAKALE & ANOR V. ALIYU & ORS (2019) LPELR-48812 (CA); LADGROUP LTD V. FBN PLC (2017) 12 NWLR (PT. 1580) 464@ 392- 393 PARAS G-E; OKONKWO V. C.C.B. (NIG) PLC (2003) NWLR (PT. 822) 347; BURAIMOH V. BAMGBOSE (1989) 3 NWLR (PT. 109) 352. He urged the Court to resolve this issue in favor of the 4th Respondent.

under subsection (1) of this section if –
(a) he has been educated up to at least School certificate or its equivalent; and
(b) he is a member of a political party and is sponsored by that party.
66. (1) No person shall be qualified for election to the Senate or the House of Representatives if –
(a) …
(b) …
(c) …
(d) …
(e) …
(g) …
(h) …
(i) he has presented a forged certificate to the Independent National Electoral Commission.”

the affidavit or any document submitted by that candidate is false, the Court shall issue an order disqualifying the candidate from contesting the election.
(7) A candidate for an election shall, at the time of submitting the prescribed form, furnish the Commission with an identifiable address in the State where he intends to contest the election at which address all documents and Court processes from either the Commission or any other person shall be served on him.
(8) A political party which presents to the Commission the name of a candidate who does not meet the qualifications stipulated in this section, commits an offence and is liable on conviction to a maximum fine or N500,000.00.

In the instant case, the 1st Respondent as plaintiff approached the lower Court with an Originating Summons to challenge the qualification of the appellant to stand as a candidate. This issue raised therein was that the appellant made false statement/declaration in the affidavit and documents he submitted to the 2nd and 3rd Respondents. The lower Court at pages 417 to 419 of the record of appeal found in its judgment as follows:

The Plaintiff then tenders Exh. A21 which is a forwarding letter by the 2nd Defendant for the submission of INEC Forms, EC 9C, EC 9, EC 13C to the 3rd Defendant in respect of the candidature of the 1st Defendant for the Imo North Senatorial Bye-Election. Now, Exh. A22 is Form EC 9C tendered by the Plaintiff, which is for submission of the name of the 1st Defendant stated therein as Chukwuma Francis Ibezim whose academic qualification is also therein stated as WASC, that is, West African School Certificate. The Plaintiff has further tendered Exh. A23 which is the Affidavit of Personal Particulars (Form EC 9) of the 1st Defendant. Therein, the names of the 1st Defendant is thus stated: Surname – Ibezim, other names – Chukwuma Francis, and his date of birth is given as 16th December, 1964. Therein also, the qualification of the 1st Defendant is stated as West African Examination Council Certificate, 1980. Another document tendered by the Plaintiff is Exh. A25 which is affidavit of age declaration of the 1st Defendant deposed to on 22nd September, 2010 by one Emmanuel Ibezim describing himself as elder brother of the 1st Defendant

at the Registry of the High Court of the Federal Capital Territory, Abuja. Therein, the names of the 1st Defendant is stated as Chukwuma Francis Ibezim and date of birth stated as 16th December, 1964. In Exh. A26 tendered by the Plaintiff which is the West African Examination Council result sheet for May/June GCE O/Level 1980, the name of the 1st Defendant therein is stated as Ibezim Francis Chukwuma. Exhibit A27 also tendered by the Plaintiff is West African Examination Council School certificate of June, 1980, the name of the 1st Defendant stated therein is Ibezim Francis Chukwuma. In Exh. A28 which is School Certificate May/June 1980 detailed result, the name of the 1st Defendant is given as Ibezim Francis Chukwuma. In Exh. A29 which is the 2nd Defendant’s membership card of the 1st Defendant, his name is written as Ibezim, Chukwuma Francis while in Exh. A30 which is the Voter’s Registration Card of the 1st Defendant, his name is written as Ibezim Chukwuma Francis.
On the allegation in question one that the 1st Defendant presented falsified and uncertified photocopies of West African Examination Council (WAEC)

Certificate, I have noted that the 1st Defendant submitted Exh. A26 which is a computer printout of May/June GCE O/Level, 1980 result, Exh. A27 which is photocopy of the West African Examination Council School Certificate for June, 1980 and School Certificate May/June 1980 detailed result from Uboma Secondary School, Ikperejere Etiti, purportedly signed by the Principal of the School on 16th January, 1981. Upon studying these three results, I find that each of them refer to the GCE O/Level of the 1st Defendant of 1980 because they all have the same examination number. In Exhs. A26 and A27 the number is stated as 11631041, while in Exh. A28, the number is broken into Candidate’s Number 041 and Centre Number 11631. If the numbers are put together, it would come to 11631041. I have noted that there are discrepancies in the scores recorded in the three results that constitute Exhs. A26, A27 and A28 even though the respective result sheets have the same number. In Exh. A26 and A28, the 1st Defendant is purported to have written examination for nine (9) subject and in Exh. A28 he wrote examination on seven (7) subjects. I

have already stated that the three results sheets have the same examination number. There is something wrong with these results. The defence of the 1st Defendant per averments in paragraphs 26, 27, 28 and 29 of his counter-affidavit has not explained the variations in the three respective result sheets, neither have the said averments debunked the fact that Exhs. A26, A27 and A28 were submitted to the 3rd Defendant by the 2nd Defendant or that the certified true copies of these exhibits were not obtained from the 3rd Defendant. The 1st Defendant having not taken any step to controvert the case of Plaintiff concerning the falsity of Exhs. A26, A27 and A28 has therefore allowed the case of the Plaintiff to remain uncontroverted.
I therefore, find that Exhs. A26, A27 and A28 submitted are not authentic results and are self-contradictory. Therefore, they are false in all material particular and I so hold. I resolve issue one in favour of the Plaintiff…

The lower Court in its judgment found the information supplied by the appellant to the INEC (3rd Respondent) as false. A deep look at the documents and the

assessment or evaluation of the evidence before the Court shows clearly that the lower Court did a credible evaluation and he cannot be faulted on that. It is very obvious and correct a finding that the information supplied was false and no other person or authorities could mend any error on Certificates other than the institution that issued them. The fact remains that any candidate that wants to supply information to the 3rd Respondent for any general election must be diligent and strictly faultless in respect of the entries made therein. Arrangement of names of an individual is such a serious venture that candidates must be diligent in doing that. If a name of a person is misarranged, he tells a lie about his name. Conventionally, a person gives his first name, followed by his middle name and his last name. When one turns to write his names as in American system to begin with his last name, he will follow it up with his first name and middle name. If the names are written out of turn or out of order, the name will be manifesting names of a person other than the person claiming it. The lower Court found that

the appellant cannot be known as Chukwuma Francis Ibezim and also as be known as Ibezim Francis Chukwwuma or Chukwuma Frank Ibezim.
The learned counsel for the appellant in his brief of argument on the issue of names referred to some authorities such as PDP & Ors. v. Degi-Eremienyo & Ors. (2020) LPELR – 49734 (SC) and the cases of Abubakar v. INEC (2020) 12 NWLR (Pt. 1737) @ pages 110 – 111, 129 – 130, 172 to 173, Dankwambo v. Abubakar & Ors. (2015) LPELR – 25716 (SC). These decisions with greatest respect are different from the scenario and circumstances of the instant case. In the instant case, the appellant on his documents has different array of name arrangements. On Exhibit A25, the appellant is known as Chukwuma Francis Ibezim. On Exhibit A 27 he is known as Ibezim Francis Chukwuma. On Exhibit A29 his name is Ibezim Chukwuma Francis. Other variants of the name from the records are Ibezim Chukwuma Frank; Chukwuma Frank Ibezim and Frank C. Ibezim. The learned counsel for the appellant at page 17 para 4.54 of his brief said:
Your noble Lordships will see that the

misguided grouse of the 1st Respondent was in the abbreviation of the Francis to Frank. But he did not advert to the maxim that by whatever name you call a rose it will smell as a rose and look exactly the like a rose. From Wikipedia.org it is clearly stated as follows “The name Frank is a common diminutive for Francis…”
Let me quickly say here that the situation in the instant case is not about smelling rose to look exactly like a rose, it is about calling rose which is so called by its proper name as is required of an applicant or a candidate for an elective/public office. It is not about answering names which smells like the real name but cannot be fixed to the identity of the owner of the name. When names are answered in variants, they are bound to be confusion and falsehood. In one examination which the appellant relied upon as his qualification which is WAEC leading to the award of West African School Certificate (WASC), the appellant submitted three results constituting Exhibits A26, A27 and A28. On Exhibits A26 and A28, the appellant was shown to have entered nine (9) subjects but in Exhibits

A27, he was recorded to have entered Seven (7) subjects in the same examination. There are discrepancies in the scores entered in the three results. The learned trial judge in his judgment found the results as not authentic results. He saw them as false in all material particulars. The issue of Exhibit A5 which is the declaration of age of the appellant was said to be left unsigned by the deponent who is the brother of the appellant. By the time it was submitted now as Exhibit A25, it has now been signed. It was clearly found to be signed suspiciously.

commission of such act is or is not directly in issue in the action”.
On this provision, see the cases of Mohammed v. Wammako and Ors. (2018) 7 NWLR (Pt. 1619) 573 at 588 and 591, Ikpeazu v. Otti (2016) All FWLR (Pt. 833) 1946, Saleh v. Abah (2018) All FWLR (Pt. 933) 944, Maihaja v. Gaidam (2018) 4 NWLR (Pt. 1610) 454 at 486 – 489. It is trite that he who asserts has the burden to prove the assertion or allegation and if the allegation or assertion is criminal in nature it must be proved beyond reasonable doubt by the person asserting. See the case of Zaccala v. Edosa and Anor. (2018) All FWLR (Pt. 926) 1 at 34 per the lead judgment of his lordship, Eko, JSC, to the effect that proof beyond reasonable doubt is not established by mere assertion. See the case of Maihaja v. Gaidam (2018) 4 NWLR (Pt. 1610) 545 at 486 – 489.
In the instant case, the evidence is solely on affidavit evidence because of the Originating Summons. In a situation such as this what proves assertion is the production of documents which truly and clearly establish what is asserted. For example, Exhibits A5 and A25, Exhibits A26,

A27 and A28. These documents backing the assertion of the appellant on falsification is definitely enough to prove the said assertion. Proof beyond reasonable doubt it is settled, is not proof beyond every shadow of doubt. The findings of the lower Court from the facts before the Court is unassailable. This issue one is therefore, resolved against the appellant.

Issue Two:
This issue is – whether the lower Court acted without jurisdiction and breached Section 285 {9} of the 1999 Constitution of the Federal Republic of Nigeria {as amended}.
Learned counsel to the appellant submitted that it is not the duty of this Court to carry out a surgical operation to sever from the case of the 1st Respondent dead causes of action. The virus of statute bar has inextricably afflicted the case of the 1st Respondent. Counsel relied on NWOSU V. APP & ORS (2019) LPELR- 49206 (CA); OTU & ANOR V. ANI & ORS (2013) LPELR-21405 (CA); ANGADI V. PDP & ORS (2018) LPELR-44375 (SC). He urged the Court to resolve this in favour of the appellant.

Learned counsel to the 1st Respondent submitted that the appellant argued this issue from paragraphs 5.1- 5.11 that the case of the 1st Respondent before the lower Court was statute barred in that it offends Section 285 (9) of the 4th Alteration to the 1999 Constitution of the Federal Republic of Nigeria (as Amended). Counsel canvassed that the contention of the appellant in that regard is novel in this appeal. That it was not canvassed before the lower Court and no findings were made by the lower Court in the entire judgement to have been made an issue before this Court. The law is trite that before a new issue can be raised on appeal, it must be by leave of this Court first sought and obtained. Counsel relied on SALIU V. STATE (SUPRA); A.G. ABIA V. A.G. FEDERATION (2006) 16 NWLR (PT. 1005) 265; EZEKE V. DEDE & ORS (1999) LPELR-6640 (CA); AREGBESOLA V. ADENIKE & ORS (2015) LPELR-25594 (CA). He urged the Court to resolve this issue in favour of the 1st Respondent and dismiss the appeal.

Learned counsel to the 4th Respondent submitted that the appellant had argued this issue in his paragraph 5.1 -5.11 of his Brief of

Argument that this suit is statute barred and offends the provision of Section 285 (9) of the 4th Alteration to the 1999 Constitution of The Federal Republic of Nigeria (as amended). Counsel relied on MODIBBO V. USMAN (2020) 3 NWLR (PT. 1712)470 @ 505 PARAS C-G; ORDER 29 OF THE FEDERAL HIGH COURT (CIVIL PROCEDURE) RULES 2019; GOVERNOR OF EKITI STATE & ANOR V. AKINYEMI & ORS (2011) LPELR-4218 (CA); CIL RISK & ASSET MGT. LTD V. EKITI STATE GOVT. (2020) 12 NWLR (PT. 1738)203, 247, PARAS A-E; ATTORNEY GENERAL OF ABIA STATE V. ATTORNEY GENERAL OF THE FEDERATION (2006) 16 NWLR (PT. 1005) 265; EZEKE V. DEDE & ORS (1999) LPELR-6640 (CA); AREGBESOLA V. ADENIKE & ORS (2015) LPELR-25594 (CA). He urged the Court to dismiss the appeal.

Learned counsel to the appellant in his Reply Brief to the new issues raised by the 1st Respondent submitted that in order to avoid the consequences of 1st Respondent’s resting his case on the appellants eligibility/qualification to be nominated by the 2nd Respondent to contest the election as shown in the questions for determination and the reliefs, the 1st Respondents is now on Appeal trying to set up a case

different from that made on its amended Originating Summons by deliberately omitting the phrase not qualified or eligible for nomination to contest. Counsel relied on AJIDE V. KELANI (1985) NWLR (PT. 12) 248 @ 269 PARAS C-D. Learned counsel further submitted that the argument of the 1st Respondent in paragraph 4.1.10 that the case of the 1st Respondent is established based on the purported admission of the appellant in his brief of argument is with respect misconceived in that there is no admission at all in the Appellants brief of argument but that a case for declaration as sought by the 1st Respondent cannot be established on any admission by the Appellant. Counsel relied on AYANRU V. MANDILAS LTD (2007) 10 NWLR (PT. 1043) 462; (2007) LPELR-670 @ 16-17 PARAS E-C; CONGRESS FOR PROGRESSIVE CHANGE (CPC) V. INDEPENDENT NATIONAL ELECTORAL COMMISSION (2011) 18 NWLR (PT. 1279) 493 @ 538; ABUBAKAR V. I.NE.C. (2020) 12 NWLR (PT.1737) 37. Learned Counsel to the appellant submitted that to use affidavit to link variants of his name in accordance with the most recent decision of the Supreme Court. Counsel

submitted that the 1st Respondent argument in paragraph 4.1.22 on proof beyond reasonable, it suffices to submit that proof beyond reasonable doubt cannot be attained through reliance on affidavit evidence as was done by the 1st Respondent and the lower Court. Counsel relied on AGI V. PDP & ORS (2016) LPELR-42578 (SC). Learned counsel to the appellant further submitted that the 1st Respondent’s argument in paragraph 4.1.28 of his brief of argument that the facts and circumstances of this case are not contentious is clearly misconceived as forgery and fraud were alleged as the foundation of the 1st Respondent. Counsel relied on ECOBANK V. BUKAS KASMAL INTL LTD & ORS (2017) LPELR-43544 (CA); MUSA V. TOYIN & ORS (2017) LPELR-43615 (CA).

This issue two deals with the jurisdiction of the lower Court. By Section 31(5) of the Electoral Act, the lower Court ordinarily has jurisdiction to entertain the case of the 1st Respondent. However, if the action is not initiated as prescribed by Section 285(9) of the 1999 Constitution as amended, the action will be incompetent and would not confer jurisdiction on the trial Court. Section 285(9) of the 1999 Constitution provides:

“Notwithstanding anything to the contrary in this Constitution, every pre-election matter shall be filed not later than 14 days from the date of the occurrence of the event, decision or action complained of in the suit”.
The Constitution set a time of 14 days within which action can be taken as shown in Section 285 (9) thereof. The INEC Forms complained of as containing false information is exhibited as Exhibit A21 to the affidavit in support of the Originating Summons. That Form was received by INEC (3rd Respondent) from their stamp on the Form at page 61 of the Record of Appeal on 13th September, 2020. The 1st Respondent took out the Originating Summons on 23rd September, 2020. A simple arithmetical calculation of the days will show that action was taken exactly on the 11th day from the submission of the Form containing false information. The Suit was therefore clearly within the time specified by the constitution. The case therefore is not statute barred. It was competent and the lower Court had jurisdiction to entertain the matter. This issue therefore, is resolved against the appellant.

From the foregoing consideration therefore, it is my considered view that this appeal is lacking in merit. The appeal is accordingly dismissed. The judgment of the lower Court delivered on 4th of December, 2020 in Suit No: FHC/ABJ/CS/1229/2020, is hereby affirmed.

ABUBAKAR DATTI YAHAHA, J.C.A.: I have read in advance, the leading judgment of my learned brother Adah JCA just delivered and both issues have been adequately resolved. I am in entire agreement that nothing useful has been urged in favour of the Appellant, and the appeal therefore has no merit. I also dismiss it and affirm the Judgment of the trial Court delivered on 4th December, 2020 in Suit No. FHC/ABJ/CS/1229/2020.

UCHECHUKWU ONYEMENAM, J.C.A.: I had a preview of the lead Judgment just delivered by my learned brother, STEPHEN JONAH ADAH, JCA.

I agree with the decision of my learned brother that the appeal lacks merit and I so hold. I dismiss the appeal on account of the reasons stated in the lead judgment and I uphold the judgment of the lower Court in Suit No: FHC/ABJ/1229/2020 delivered on4th December, 2020.
34

Appearances:

ROBERT EMUKPOERUO, SAN, with him, OZOHU DAUDU, ESQ. For Appellant(s)

M.A. EBUTE, ESQ., SAN, with him, GANIYU AJAPE, ESQ., GEORGE IBRAHIM, ESQ. and EMMANUEL O. ONOJA, ESQ. – for 1st Respondent
VALENTINE OFFIA, ESQ., with him, KUNLE KOSOKO, ESQ. – for 2nd Respondent
WENDY KUKU, ESQ., with him, S.M. DANBABA, ESQ. – for 3rd Respondent
CHIEF GORDY UCHE, SAN, with him, D.U. ANYANWU, ESQ., ISAAC NWACHUKKWU, ESQ. and FRANCIS NSIEGBUNAM, ESQ. – for 4th Respondent For Respondent(s)

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