MRS. BENE UKWUEZE v. SIR UGWUEZE EROCHUKWU M. & ORS
(2011)LCN/5001(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 13th day of December, 2011
CA/E/EPT/42/2011
RATIO
PARAGRAPH 8 OF THE ELECTION TRIBUNAL AND COURT PRACTICE DIRECTIONS ,2011: DUTIES OF THE SECRETARY OF THE ELECTION TRIBUNAL UNDER THE PROVISIONS OF PARAGRAPH 8 AND 9 OF THE ELECTION TRIBUNAL AND COURT PRACTICE DIRECTIONS,2011
It is my considered view that there is much merit in the submission of learned lead counsel in this regard. By the provision of Paragraph 8 of the Election Tribunal and Court Practice Directions, 2011, the duty is imposed on the secretary of the Tribunal to serve all respondents in an election appeal with the Notice of Appeal immediately on the receipt of the same. Paragraph 9 of the same Directions, further charges the secretary of the Tribunal with the duty of compiling the record of proceedings or appeal and serving all the parties in an election appeal with the same not more than 10 days of the receipt by him of the notice of appeal. PER ABUBAKAR JEGA ABDULKADIR, J.C.A.
QUALIFICATION OF A CANDIDATE: WHETHER THE NON-POSSESSION OF A SCHOOL CERTIFICATE IN LAW MEANS NOT BEING EDUCATED TO SCHOOL CERTIFICATE LEVEL
It is in my considered view most glaring from the provision of Section 106(c) of the Constitution never provided for presentation or possession of School Certificate only to qualify for the questioned election. The provision talks of School Certificate level or its equivalent and what is meant by this have been elaborately set out in Section 318 of the said Constitution. There is no doubt having regard to the provision of Section 106(c) of the Constitution (supra) as well as the definition provided therefor, that the possession of a School Certificate will undoubtedly be sufficient proof of being educated to school certificate level, but it is definitely not the only means of proving that one is educated to that level. Contrarily, therefore, the non-possession of a School Certificate cannot in law be ipso facto proof of having not been educated to school certificate level. PER ABUBAKAR JEGA ABDULKADIR, J.C.A.
RELIEFS: DUTY OF A PARTY SEEKING A RELIEF PURSUANT TO THE PROVISION OF A STATUTE
The law is settled that any party seeking a relief pursuant to the provision of a statute, must satisfy all the conditions put in place by the statute in question in order to be entitled to the relief. PER ABUBAKAR JEGA ABDULKADIR, J.C.A.
JUSTICES
ABUBAKAR JEGA ABDULKADIR Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
ADAMU JUARO Justice of The Court of Appeal of Nigeria
Between
MRS. BENE UKWUEZE – Appellant(s)
AND
1. SIR UGWUEZE EROCHUKWU M.
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. THE RETURNING OFFICER, IGBO EZE SOUTH STATE CONSTITUENCY
4. THE RESIDENT ELECTORAL COMMISSIONER ENUGU STATE
5. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) – Respondent(s)
ABUBAKAR JEGA ABDULKADIR, J.C.A.(Delivering the Leading Judgment): This is an appeal against the judgment delivered on 28/10/2011 by the National and State Houses of Assembly Election Tribunal, Enugu State (hereafter simply referred to as “the Tribunal”) dismissing Petition No. EPT/EN/HA/11/2011: and confirming the election and return, of the 1st Respondent as the duly elected member of the Enugu State House of Assembly for Igboeze South Constituency of Enugu State.
The facts of the matter briefly stated are the Appellant as Petitioner instituted Petition No. EPT/EN/HA/11/2011 (hereafter simply referred to as “the Petition”) on 17/5/2011 before the Tribunal challenging the declaration and return of the 1st Respondent by the 3rd Respondent as the winner of the Enugu State House of Assembly election for the Igboeze South Constituency of Enugu State, held on 26/4/2011. The Appellant contested the questioned election on the platform of the Labour Party (hereafter simply referred to as “LP”); while the 1st Respondent was sponsored for and contested the same election on the platform of the 2nd Respondent. The grounds upon which the Appellant questioned the election and return of the 1st Respondent and/or predicated the Petition as set out in the Petition are as follows: –
(i) The 1st respondent who had been declared winner in the election was not qualified to contest the election because he did not possess the certificate he made out that he possessed i.e. the WAEC (GCE).
(ii) That in the PDP declaration of interest and other forms he had filed he had filled in “UGWUEZE EROCHUKWU MATHEW” as his name, the Senior School Certificate Examination result for Nov/Dec. 1998 he had submitted to the party, INEC and other bodies bore “UGWUEJE MATHEW” as his name, at the trial the said Senior School Certificate will be relied on, also to be relied on are the forms filled by the 1st Respondent and submitted to Peoples Democratic Party (PDP), i.e. Form PD00215N2010, the same form was submitted to the INEC, at the trial the 4th respondent is given notice to produce the original.
(iii) That again in the First School Leaving Certificate of the 1st respondent, he had his name as ITODO MATHEW E., at the trial a copy thereof shall be founded on.
(iv) That in an affidavit he deposed at the High Court of Abia State, Aba Judicial Division dated 23/1/09, the 1st respondent had averred and stated at paragraph 1 thus “That I enrolled and sat for the November/December 1998 Senior School Certificate Examination”, 2 “That my number was 04718295 and I was issued with the SSCE notification of result slip on 7th day of September, 1999”, at the trial a certified true copy thereof shall be founded upon.
(v) That the petitioner’s discreet search at the office of the WEST AFRICAN EXAMINATIONS COUNCIL had however revealed that the original SSCE NO. 04718295 was in the name of one “EJEH OLUCHI LILLIAN” and not in the 1st respondent’s name – a copy of the said certificate generated from the WAEC website shall be founded upon, the WAEC shall also be subpoenaed to produce the original certificate in court since a copy thereof shall be founded upon.
(vi) The 1st respondent had deposed in paragraph 3 of his affidavit supra deposed to at the Abia State High Court Aba that he had entered the following subjects in the Exam i.e. to say: – “English Language, Igbo Language, Literature in English, Christian Religious Knowledge, Government, Economics, Mathematics, Biology, Commerce” these same subjects appear in the aforesaid result generated from WAEC Website.”
Having made averments she considered to be relevant in support of the above mentioned grounds, (and amongst the averments being to the effect that the 1st Respondent lied on oath; and that the certificate he presented to INEC was a forgery), the Appellant prayed the Tribunal for the following in paragraph 9 of the Petition: –
(1) A declaration of the Honourable Tribunal that the 1st respondent was not qualified to contest the election.
(2) A declaration of court that the 1st respondent who was returned as winner of the election was not validly elected since he did not secure majority of the valid votes cast at the election.
(3) A declaration that the petitioner had won the election having secured majority of the valid votes cast in the election and that she is entitled to the certificate of return in the election and to all the perquisites of that position i.e. member representing Igboeze South Constituency, Enugu State at the Enugu State House of Assembly.”
The 1st Respondents and the others Respondents filed their respective replies to the Petition. During the pre-hearing stage of the Petition, the Tribunal on 7/7/2011 struck out the Appellant’s prayer that she be declared as having secured the majority of lawful votes, as the prayer was not supported by her pleading. The Appellant called two witnesses in the proof of the case set up in the Petition; while the 1st Respondent testified in his own behalf and called no other witness in the proof of the case set up in his reply.
The other Respondents did not call witnesses at the hearing of the Petition. All the parties filed written addresses. The 1st Respondent filed a reply on point of law to the written address of the Appellant; while the Appellant filed replies on point of law to the written addresses of the 2nd as well as 3rd – 5th Respondents respectively. The Tribunal after considering the written addresses of the parties and having evaluated the evidence before it concluded that the Appellant failed to prove that the 1st Respondent was at the time of the election not qualified to contest the questioned election and also that the allegation of forgery had not been established against the 1st Respondent beyond reasonable doubt. Consequently, the Tribunal found the Petition to be without merit and dismissed the same. The Tribunal further confirmed the election and return of “the 1st Respondent as the only elected member of the House, the State House of Assembly for Igboeze South Constituency Enugu State”. Costs of N200, 000.00 was awarded by the Tribunal in favour of the 1st and 2nd Respondents.
Being dissatisfied with the decision of the Tribunal, the Appellant lodged an appeal against the same by A Notice of Appeal dated 31/10/2011 and filed at the Registry of the Tribunal on 2/11/2011. Subsequently the Appellant lodged two other Notices of Appeal dated 11/11/2011 and 16/11/2011 and filed on 11/11/2011 and 16/11/2011 respectively against the same judgment of the Tribunal.
In accordance with the Rules of this Court, parties filed and exchanged Briefs of Argument. Appellant’s Brief of Argument dated 14/11/2011 and filed on the same date was settled by Chuma Oguejiofor, Esq. The Brief of Argument of the 1st Respondent settled by Tochukwu Maduka dated 21/11/2011 and filed on 22/11/2011 was deemed as having been properly filed and served on 7/12/2011 by the Order of this Court made on the same date. The Brief of Argument of the 3rd – 5th Respondents dated 21/11/2011 and filed on the same date was settled by Emmanuel Ogbodu, Esq. (Asst. Director, Legal, INEC). When the appeal was called on 7/12/2011, Chuma Oguejiofor learned lead counsel for the Appellant disclosed that the Appellant’s Brief of Argument as identified hereinbefore in this judgment is predicated on the Notice of Appeal dated 11/11/2011 and filed on the same date. Tochukwu Maduka and E.E. Ogbodu learned counsel for the 2nd and 3rd – 5th Respondents respectively having disclosed that they predicated their respective Briefs of Argument on the Notice of Appeal dated 31/10/2011 and filed on 2/11/2011 as contained in the bounded record of appeal, were given the liberty or permission or leave by the Court to file amended Briefs of Arguments and the appeal adjourned till 8/12/2011 at 2pm for hearing.
At the hearing of the appeal on 8/12/2011, Tochukwu Maduka of counsel for the 1st Respondent first argued the preliminary objection contained in the Notice of Preliminary Objection dated 8/12/2011 and filed in the appeal on the same date. In this regard he adopted and relied on the argument contained in the Brief of Argument of the 1st Respondent in respect of the preliminary objection. Learned counsel for the Appellant having disclosed that he was served with the Notice of Preliminary Objection only that morning in Court made oral submissions in response to the preliminary objection of the 1st Respondent. After entertaining the preliminary objection of the 1st Respondent, learned counsel to the parties that had their Briefs of Argument before the Court adopted and relied on the respective Briefs of Argument they filed on behalf of their clients in support of their various positions in the appeal. V.O. Ene of counsel for the 2nd Respondent having disclosed that the said Respondent filed no Brief of Argument in the appeal, associated himself with the submissions contained in the Brief of Argument of the 1st Respondent as well as the position of the said 1st Respondent in the appeal.
I consider it expedient to first resolve the preliminary objection of the 1st Respondent before dwelling more on the Briefs of Arguments before the Court, particularly the Brief of Argument of the Appellant as the objection relates to the Notice of Appeal on which the said Brief is predicated.
By the preliminary objection of the 1st Respondent as contained in the Notice of Preliminary Objection hereinbefore identified in this judgment, the Court is being prayed to strike out this appeal. The grounds of the application as set out in the Notice of Preliminary Objection are: –
“1. The Appellant’s counsel had on 7th day of December 2011 withdrawn all other Notice of Appeal filed by the Appellant, which includes the Notice of Appeal filed on 2nd November 2011 which forms part of the Record, except the Notice of Appeal filed on 11th November 2011 which he stated the Appellant will be relying on.
2. The Notice of Appeal filed on 11th November 2011, does not form part of the Record before the Honourable Court.
3. There is therefore no Notice of Appeal before this Court upon which the appeal is predicated.
4. The Court lacks the jurisdiction to go outside the Record placed before it.
5. In the absence of a Notice of Appeal before the Court, the appeal is incompetent.”
Dwelling on the preliminary objection in his Brief of Argument, the 1st Respondent having set out the other Notices of Appeal which learned lead counsel for the Appellant must be taken to have impliedly withdrawn by expressly informing the Court that the Appellant’s Brief of Argument was predicated on the Notice of Appeal dated 11/11/2011 and filed on the same date, submitted that in the circumstance, the Notice of Appeal dated 31/10/2011 and filed on 2/11/2011 and contained at pages 506 – 509 of the record, stood withdrawn. The 1st Respondent further submitted that the Notice of Appeal at pages 506 – 509 of the record, being the Notice upon which the instant appeal was entered as Appeal No. CA/E/EPT/42/2011, there was in the circumstance no Notice of Appeal against the judgment of the Tribunal in the record of appeal. Also conceding that an appellant was at liberty to file as many notices of appeal as he wishes within the time limited for appealing, the 1st Respondent submitted that the Notice of Appeal an appellant wishes to rely upon in an appeal must however be contained in “the Notice of Appeal” (which I believe should read “Record of Appeal). Having cited many cases including Okafor v. Onedibe (2003) 9 NWLR (Pt. 825) 399 at 413; and Veepee Ind. Ltd v. Coca Ind. Ltd (2008) 13 NWLR (Pt. 1105) 486 at 512, all of which decide to the effect that an appellate court is bound by the record before it and should act within the four walls of the said record, the 1st Respondent submitted that this Court has no Notice of Appeal to act upon, the Appellant “having withdrawn all the other Notices of Appeal filed by her and upon which this appeal is predicated. A fortiori, the 1st Respondent submitted that the Court has no jurisdiction to look at the Notice of Appeal filed on 11/11/2011 because it does not form part of the record.
Learned lead counsel for the appellant responding orally to the arguments of the 1st Respondent in respect of the preliminary objection, submitted that the objection offends the express provisions of Order 10 Rule 1 of the Rules of this Court. Also referring to Paragraph 12 of the Practice Direction learned counsel submitted that the Brief of the 1st Respondent was filed out of time. Furthermore, it is the submission of learned lead counsel that the Notice dated 11/11/2011 upon which the Appellant’s Brief of Argument is predicated was duly filed at the Registry of the Tribunal and that how the secretary of the Tribunal chose to transmit the Notice to this Court is not the Appellant’s doing. That the Appellant in the circumstance, cannot be penalized for whatever means or manner employed by the secretary in transmitting the Notice of Appeal in question to this Court.
My initial inclination was to overrule the preliminary objection of the 1st Respondent peremptorily, given the express provision of Order 10 Rule 1 of the Rules of this Court, referred to by learned lead counsel for the Appellant.
The provision of the Rule of Court in question provides in mandatory terms that a respondent intending to rely on a preliminary objection at the hearing of the appeal, should give the appellant notice of the same, three clear days before the hearing of the appeal. However on reflecting further on the circumstances leading to the emergence of the 1st Respondent’s Notice of Preliminary Objection and the preliminary objection raised therein, I do not see how the said Respondent could humanly have complied with the provision of the Rule of Court earlier mentioned. This is particularly so as learned lead counsel for the Appellant not only did not press for time to enable him response to the preliminary objection (apparently against the backdrop that the appeal being an election appeal must be determined within the time frame of 60 days from the date of delivery by the Tribunal), but also made oral submissions in response to the said objection.
Learned lead counsel for the Appellant amongst others, submitted that it was not the Appellant’s doing if the secretary of the Tribunal transmitted the Notice of Appeal upon which the Appellant predicated his Brief of Argument in the manner he chose.
It is my considered view that there is much merit in the submission of learned lead counsel in this regard.
By the provision of Paragraph 8 of the Election Tribunal and Court Practice Directions, 2011, the duty is imposed on the secretary of the Tribunal to serve all respondents in an election appeal with the Notice of Appeal immediately on the receipt of the same. Paragraph 9 of the same Directions, further charges the secretary of the Tribunal with the duty of compiling the record of proceedings or appeal and serving all the parties in an election appeal with the same not more than 10 days of the receipt by him of the notice of appeal.
The Notice of Appeal filed on 11/11/2011 upon which the Brief of Argument of the Appellant is predicated on its face shows clearly that it was filed at the Tribunal on the same 11/11/2011 and equally transmitted to this Court on the same date. It is true that the Notice of Appeal in the “bounded record” of appeal (and I have used the words “bounded record” advisedly) was filed on 2/11/2011 and the record shows on its face that it was transmitted to this Court on 4/11/2011 (i.e. 3 within days of the receipt of the said Notice of Appeal). The maximum time given the secretary of the Tribunal for the compilation and service on the parties of the record of appeal has clearly not expired by the time the Appellant filed on 11/11/2011 the Notice of Appeal upon which her Brief of Argument is predicated. The time frame the secretary had for this purpose ended on the very 11/11/2011 that the Notice dated 11/11/2011 was filed.
I am of the considered view in the light of all that has been said that, despite the earlier transmission to this Court on 4/11/2011 of the record of appeal, it was still the bounden duty of the secretary to have transmitted the Notice of Appeal dated 11/11/2011 to this Court immediately upon its receipt by him on the said 11/11/2011. This the secretary had apparently done as the Notice of Appeal dated 11/11/2011 and filed at the Tribunal on the same date on its face is shown to have been transmitted to this Court on the same date. This is particularly so in the absence of any allegation from the 1st Respondent that it was the Appellant that transmitted the Notice of Appeal dated 11/11/2011 filed at the Tribunal to this Court on the said 11/11/2011, talk less of proof in that regard.
Admittedly, the ideal manner the secretary, (having earlier transmitted the record of appeal to this Court), should have employed placing the Notice of Appeal dated 11/11/2011 before the Court should have been by way of additional record. Though the manner of transmission of the Notice in question before this Court was not done in the ideal manner, there is however no running away from the fact that the Notice in question is part of the record of appeal before this Court, as it has been placed before the Court within the time frame the secretary had to transmit the record of appeal in the instant Petition here; hence the use of the words “bounded record” before now. This being the situation in the instant appeal, it is obvious that if there is anything wrong with the manner of transmission of the Notice of Appeal dated 11/11/2011 and filed on the same, date before this Court on 11/11/2011, the Appellant having not been shown to be responsible for this, cannot be damnified or penalized for the same.
All that has been said before now, in my considered view clearly show the hollowness of the preliminary objection of the 1st Respondent and the inapplicability of all the cases he cited in aid of the same, given the peculiar circumstances of the instant appeal.
In the final analysis, the preliminary of the 1st Respondent is being hollow or empty is overruled and accordingly dismissed.
The Appellant in her Brief of Argument formulated two issues for the determination of the appeal. The issues read thus: –
“(A) Whether the Tribunal below was right in holding that the Appellant did not prove her case upon the acceptable standard of evidence that the 1st Respondent was not qualified to contest Election to the Enugu State House of Assembly (Igboeze South Constituency).
(B) Whether the learned tribunal was right in failing to declare the Appellant winner of the election and in striking out paragraphs 9 (2) and (3) of the Appellant’s”, and was the cost of N200,000.00 awarded against the Appellant not punitive, outrageous and unjustifiable.”
The 1st Respondent formulated four issues for the determination of the appeal in his Brief of Argument. The issues read thus: –
“1. Was the Tribunal wrong in holding that the Appellant failed to prove her petition and accordingly dismissed same? (Refined from grounds 1 and 5)
2. Whether the tribunal was right in holding that paragraph 2 (i) of the petition was not consistent with Section 106 (c) of the Constitution? (Refined from ground 2)
3. Whether the tribunal was right in striking out reliefs numbers 2 and 3 of the petition? (Refined from ground 3)
4. Was the award of N200, 000.00 cost, by the Tribunal against the Appellant and in favour of the 1st and 2nd Respondents, punitive and excessive in the circumstances? (Distilled from ground 4)”
The two issue which the 3rd – 5th Respondents formulated for the determination of the appeal in their Brief of Argument read thus: –
“a. Whether the Honourable Tribunal was right in holding that the Appellant failed to prove that the 1st Respondent was at the time of the election not qualified to contest the election into the Igboeze South Constituency of Enugu State.
b. Whether the Honorable Tribunal was right in awarding N200,000.00 costs in favour of the 1st and 2nd Respondents.”
The appeal will be determined on the issues formulated by the Appellant as the issues in my considered view sufficiently cover the issues formulated by the 1st and 3rd – 5th Respondents respectively.
ISSUE 1
Dwelling on this issue, the Appellant in the main stated that her case as set up in the Petition is that the 1st Respondent did not possess the certificate he made out that he possessed (i.e. the WAEC/GCE) and hence he was not qualified to contest the election at the time of the election. She further said that the 1st Respondent in his reply maintained that the Senior School Certificate he had presented to INEC and his Party actually belonged to him. It is the contention of the Appellant that though she proved her case on the evidence and Exhibits, the Tribunal did not appreciate the same and literally set up another case for her. In this regard, the Appellant referred to what the Tribunal stated at page 496 of the record to the effect that though her case is that the 1st Respondent did not possess senior school certificate, what however needs to be examined was whether the provisions of Section 106 (c) of the Constitution 1999 Constitution (as amended) mandatorily required the presentation of SSCE Certificate as an exclusive proof of education to senior secondary school level. The Appellant accused the Tribunal to not to have evaluated the Exhibit tendered by her properly and also that the Tribunal took a simplistic approach to the evidence adduced by her in support of the Petition. The Tribunal was also accused of not adjudicating on the issues joined by the Appellant and the 1st Respondent in their respective pleadings in the Petition. The Appellant accused the Tribunal of countenancing the case of the 5th Respondent which did not adduce evidence in the Petition and whose case stood abandoned in the circumstance.
Dwelling on the issue at hand, the 1st Respondent stated to the effect that the ground of the Petition was that he was not at the time of the election qualified to contest the election. That his non-qualification to contest the questioned election must therefore be located within the provisions of the Constitution stipulating the grounds of qualification and disqualification for the question election, namely Sections 106 and 107. It is the submission of the 1st Respondent that the Petition only never contained any averment that he was not educated up to at least School Certificate level or its equivalent but also that no evidence in that regard was placed before the Tribunal by the Appellant. Indeed it was submitted by the 1st Respondent that the case set up by the Appellant admitted of his being educated to the Secondary School Certificate level.
Dwelling on the issue at hand, the 3rd – 5th Respondents (hereafter simply referred to as “the Respondents”) submitted to the effect that the issue borders squarely on the interpretation to be accorded Section 106(c) of the Constitution. It is the further submission of the Respondent that the Tribunal in its judgment appreciated the interpretation to be accorded the provision in question and came to the correct conclusion that the Appellant failed to prove that the 1st Respondent was not qualified to contest the election.
The Tribunal having set out the respective cases of the Appellant and the 1st Respondent in its judgment later at page 495 of the record formulated for the determination of the Petition the question as to “Whether the Petitioner has proved her case as required by law”. This no doubt showed that the Tribunal clearly appreciated the party on whom the burden to establish entitlement to the reliefs claimed is/was. The Tribunal later noted that the Appellant’s ground of non-qualification is hinged on the 1st Respondent not possessing Senior School Certificate. It would appear from the submissions of the Appellant as contained in her Brief of Argument she has not said that the ground of non-qualification she relied on, is different from that stated by the Tribunal in its judgment.
In the bid to resolve the issue for determination as formulated by it, and in clear appreciation of the case of non-qualification relied upon by the Appellant, the Tribunal said to the effect at page 496 of the record, that what needed to be examined was whether the provisions of Section 106(c) mandatorily required the presentation of School Certificate as an exclusive proof of education up to Senior School Certificate level. To resolve the question the Tribunal embarked on the legal interpretation of the words “senior school certificate level”. It was in the course of this exercise that the Tribunal embarked on the consideration of exercise of discretionary power by an administrative body such as the 5th Respondent, and using the same as analogy, borne it in mind that it (i.e. Tribunal) must not substitute its own view for the body charged with the duty of clearing candidates for elections conducted under the Electoral Act 2010 (as amended). This in my considered view certainly is not taking cognizance of the case of the 5th Respondent.
It is clearly not in dispute in this appeal that the ground of non-qualification of the 1st Respondent, the Appellant relied upon in challenging the return of the said 1st Respondent as winner of the questioned election is that of his not having the educational qualification to contest the election).
See Section 106(c) of the Constitution (supra)) as well as Section 318 where the Phrase “school Certificate or its equivalent” was elaborately set out. The Appellant in her wisdom decided to put the education qualification of the 1st Respondent in issue in the Petition by doing this, the Appellant in my considered view had to plead facts and establish by credible evidence that 1st Respondent does not have any of the qualifications as set out in Section 318 of the Constitution (supra). The Appellant having regard to the case she set up in the Petition and evidence she adduced as contained in the record, chose to hold onto only one the definition of “school Certificate or its equivalent” as provided under “(a)” thereunder namely, possession of a Secondary School Certificate. It is for the purpose of showing that the 1st Respondent is not educated to School Certificate level that she set out to show that the School Certificate the 1st Respondent has does not belong to him and also threw in or put up the issue of the forgery of the same.
It is in my considered view most glaring from the provision of Section 106(c) of the Constitution never provided for presentation or possession of School Certificate only to qualify for the questioned election. The provision talks of School Certificate level or its equivalent and what is meant by this have been elaborately set out in Section 318 of the said Constitution. There is no doubt having regard to the provision of Section 106(c) of the Constitution (supra) as well as the definition provided therefor, that the possession of a School Certificate will undoubtedly be sufficient proof of being educated to school certificate level, but it is definitely not the only means of proving that one is educated to that level. Contrarily, therefore, the non-possession of a School Certificate cannot in law be ipso facto proof of having not been educated to school certificate level. This is what the Appellant missed in setting up her case and which the Tribunal got right in coming to its conclusion that the Appellant failed to prove her case. Indeed having regard to the pleading of the Appellant in the Petition, the Appellant having anchored her ground of the non-qualification of the 1st Respondent academically, on the non-possession by him of the School Certificate which he alleged that he had, she cannot despite all the attacks unleashed on the said Certificate, be heard to say she succeeded in any way in other way in establishing the non-qualification of the 1st Respondent in the light of the position of the law.
The law is settled that any party seeking a relief pursuant to the provision of a statute, must satisfy all the conditions put in place by the statute in question in order to be entitled to the relief. The Appellants by her pleading shortchanged herself. The Tribunal never made a different case for her. The Tribunal only found her not to have established all she needed to establish in order to take advantage of the provision relating to academic disqualification as provided by the Constitution. The Appellant it should be noted never premised the disqualification of the 1st Respondent on forgery. She alleged forgery only for the purpose of establishing that the School Certificate possessed by the 1st Respondent is not his own. Surely if she had even proved forgery (which is not conceded) this is still no proof of the ground upon which she predicated her Petition.
In conclusion on Appellant’s issue, I find the Tribunal to be eminently correct in its finding or conclusion that the Appellant did not prove her case i.e. the academic non-qualification of the 1st Respondent at the time of the election. Accordingly, issue No. 1 is resolved against the appellant in favour of the respondents.
ISSUE 2
This issue would be a surreptitious attempt on the part of the Appellant to re-open the striking out of her reliefs as contained in paragraphs 9(2) and (3) on 7/7/2011, Surely this cannot be done in an appeal brought in the Petition on 11/11/2011. The Appellant in any case would only appear to want to ridicule the Tribunal as she has not shown in any way whatsoever how the striking out the paragraphs of the Petition again, in the judgment of the Tribunal has occasioned her any miscarriage of justice.
On the issue of costs, I do not see how the Appellant has shown that the costs awarded to the 1st and 2nd Respondents (who are two separate parties in the Petition), is punitive or excessive. This is in view of the sui generis nature of election petitions and which calls for input that the normal cases do not call for.
In the light of the above, Appellant’s issue 2 is also resolved against her.
In the final result the appeal is unmeritorious and it is hereby dismissed. The judgment of the Tribunal delivered on 28/10/2011 and the confirmation therein of the election and return of the 1st Respondent as the only elected member of the Enugu House of Assembly, Enugu State for the Igboeze South Constituency of Enugu State, is affirmed.
No order as to costs.
AYOBODE O. LOKULO-SODIPE, J.C.A.: I agree.
ADAMU JAURO, J.C.A.: I agree.
Appearances
Mr. C.C. Oguejiofor with Mr. I. OnuamahFor Appellant
AND
Mr. T. Maduka for the 1st Respondent
Mr. V.O. Ene for the 2nd Respondent.
Mr. E.E. Ogbodu for the 3rd to 5th Respondents.For Respondent
