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UCHE COLLINS OSAMEZU & ORS v. THE INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS (2019)

UCHE COLLINS OSAMEZU & ORS v. THE INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS

(2019)LCN/13673(CA)

In The Court of Appeal of Nigeria

On Friday, the 19th day of July, 2019

CA/B/372/2019

 

JUSTICES

CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria

PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria

TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria

Between

1. UCHE COLLINS OSAMEZU
2. KINGSLEY OGE
3. IFEANYI OKONJI
4. AGHANENU MONDAY
5. NKECHI ODIGIDAWU
(For themselves and on behalf of people of Ndokwa/Ukwuani Federal Constituency, Delta State) Appellant(s)

AND

1. THE INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
2. INSPECTOR GENERAL OF POLICE
3. PEOPLES DEMOCRATIC PARTY (PDP)
4. HON. OSSAI NICHOLAS OSSAI Respondent(s)

RATIO

WHETHER OR NOT ONLY A PROPER JUDICIAL BODY FOLLOWING TRIAL AND CONVICTION IS PERMITTED TO PROVE GUILT

However, the Supreme Court in ACTION CONGRESS OF NIGERIA & ANOR VS. INEC (2007) 1 ANLR pg 1 held in very clear terms that only a proper Judicial body following trial and conviction is the only Constitutionally permitted way to prove guilt. NWOSU-IHEME, J.C.A. 

CHIOMA EGONDU NWOSU-IHEME, J.C.A. (Delivering the Leading Judgment): The Appellants herein as Plaintiffs at the lower Court commenced this action via an Originating Summons dated the 2nd day of April, 2019 seeking the determination of the questions and reliefs contained in the said Originating Summons.

In a considered judgment delivered on the 22/5/19 Dimgba, J, of the Federal High Court Asaba Division answered all the questions put forward in the Originating Summons in the negative and consequently dismissed the Suit for lacking in merit.
This Appeal is predicated on that judgment.

SUMMARY OF FACTS:
The Appellants in this Appeal as Plaintiffs at the lower Court filed an action by way of Originating Summons against the Respondents seeking the determination of the question amongst others, whether the 4th Respondent can continue to parade himself as the member-elect for Ndokwa/Ukwuani Federal Constituency of the House of Assembly having said to have lied on Oath in his INEC form CF001.

?The case of the Appellants at the trial Court was that the 4th Respondent lied on Oath in his INEC Form CF001 where he stated that he

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has never been indicted for embezzlement or fraud by a Judicial Commission of inquiry or an Administrative Panel of inquiry and that he has never presented a forged certificate to INEC.

The Appellants claimed that the 4th Respondent was indicted by the office of the Inspector General of Police (2nd Respondent herein) for the offence of forgery, fraudulent uttering of false document and perjury.

The 4th Respondent was said to have been subsequently charged to Court at the High Court of Justice Delta State in Charge No. A/48C/2013 (Exhibit C) (See pages 24 ? 26 of the Records). The 4th Respondent was said to have been issued a Certificate of Return by INEC for the seat in the House of Representatives for Ndokwa/Ukwuani Federal Constituency of Delta State wherein he indicated in form CF001 that he has never been indicted for embezzlement or fraud by a Judicial Commission of inquiry or an Administrative Panel of inquiry.
?
The Appellants who are indigenes of the said Federal Constituency are seeking the determination of the question whether the 4th Respondent should be allowed to continue to parade himself as a member of the House of

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Representatives for Ndokwa/Ukwuani Federal Constituency of Delta State in view of the information he supplied in INEC form CF001 (Exhibit A).

Learned Counsel for the Appellants Simon Ngbakor Esq distilled six issues for determination as follows:-
ISSUES FOR DETERMINATION
1. Whether the lower Court was right when it held that ACP Bala Ciroma solely signed and authored Exhibit D ? the Police Investigation Report.
2. Whether an indictment contained in a police investigation report and the filing of information against a person for criminal charges qualify as an indictment by an Administrative Panel of Inquiry within the contemplation of INEC Form CF001 ? Exhibit ?A?.
3. Whether the lower Court was correct to hold that it is only a trial in which the presumption of innocence has been respected that can establish indictment for forgery within the contemplation of INEC Form CF001.
4. Whether the lower Court was correct when it interpreted fraud as used in the INEC Form CF001 to mean financial malfeasance and not electoral misbehavior or malfeasance.
5. Whether the trial Court was right when it held that the

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4th Respondent (4th Defendant at the trial Court) was right in the negative answer (?No?) which he provided to the question in the INEC Form CF001, Exhibit A; having failed to read the statement of offence together with the particulars of offence in the information.
6. Whether the criminal case of forgery as it relates to Exhibits C and D was ever pronounced upon by the tribunal and the Court of Appeal as to oust the police?s investigation of same.

Counsel for the Respondents Ekene Ohwovoriole SAN distilled a sole issue for determination thus:
?Whether the lower Court was right when it held that 4th Respondent did not lie or give misleading information when he gave a negative answer to question 6(a) in Exhibit A on whether he had ever been indicted for embezzlement or fraud by a Judicial Commission of Inquiry or an Administrative Panel of inquiry?.

The issues raised by both Counsel can conveniently be compressed into one straight forward issue of narrow compass thus:
?Whether on the facts and circumstances of this case, the learned trial Judge was right in holding that the 4th Respondent had never

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forged a result and had never been indicted for embezzlement or fraud by a Judicial Commission of Inquiry or Administrative Panel of inquiry and proceeded to dismiss the Suit.?

The submissions of both Counsel are as contained in their respective briefs. I do not intend to reproduce them here.

The case of the Appellants revolve round Exhibit A i.e. INEC Form CF001 which speaks of indictment for embezzlement or fraud by a Judicial Commission of inquiry or an Administrative Panel of inquiry. The Appellants seem to be quarrelling with the fact that the 4th Respondent answered the question therein in the negative. They hinged their dissatisfaction based on Charge No. A/48C/2013 Exhibit C as well as Exhibit D the indicting report issued by an official of the Nigeria Police ACP Bala Ciroma to be precise.

?It is my humble but firm view that a report made by an officer of the Nigeria Police merely acting as an investigator could not be labeled an indictment issued by a Judicial Commission of Inquiry or an Administrative Panel of Inquiry. Besides the offences in the said Exhibit D as relates to the 4th Respondent were ?uttering, Perjury and

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forgery?, and not ?embezzlement or fraud? contemplated by the said Exhibit A. The 4th Respondent was therefore well within the law to have answered the question in INEC Form CF001, Exhibit A in the negative.
Looking at Exhibit C on the other hand, i.e. Charge No. A/48C/2013, there is nothing whatsoever in Exhibit C to show that the 4th Respondent was tried and found guilty. Rather the said Exhibit C shows that the Charge No. A/48C/2013 was struck out for want of diligent prosecution which fact learned Counsel for the Appellants deliberately refused to disclose.
However, the Supreme Court in ACTION CONGRESS OF NIGERIA & ANOR VS. INEC (2007) 1 ANLR pg 1 held in very clear terms that only a proper Judicial body following trial and conviction is the only Constitutionally permitted way to prove guilt.
Consequent upon the above, the issue as to whether the 4th Respondent had forged a result and whether the 4th Respondent had been indicted for fraud by a Judicial Commission of Inquiry or any Administrative Panel of inquiry are accordingly resolved in favour of the 4th Respondent and answered in the negative.
?
In the premise,

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the Sole issue is resolved against the Appellants and in favour of the Respondents. This appeal is bereft of merit and is accordingly dismissed.

The Judgment of the Lower Court in Suit No. FHC/ASA/CS/47/2019 delivered by N. O. Dimgba, J, on the 22nd day of May, 2019 dismissing the Suit for lacking in merit is hereby affirmed.
I make no order as to costs.

PHILOMENA MBUA EKPE, J.C.A.: I have read in draft the judgment just delivered by my learned brother, Chioma Egondu Nwosu-Iheme, JCA (Ph.D). I agree that the sole issue be resolved against the Appellants and in favour of the Respondents. This appeal lacks merit and it is also dismissed by me. I affirm the judgment of the lower Court.
I abide by the order as to costs.

TUNDE OYEBANJI AWOTOYE, J.C.A.: I had the opportunity of reading the judgment just delivered by my learned brother, CHIOMA EGONDU NWOSU-IHEME, (Ph.D), JCA.
I agree fully with the reasoning and conclusion therein. I have nothing useful to add. I abide by the final orders in the lead judgment.

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Appearances:

S. Ngbakor with him, C.C. Chidiebere and T. ImomienrohFor Appellant(s)

E. Ohwovoriole, SAN with him, Mrs. O.U. Molokwu and Miss. O.P. Dafiagor for the 3rd and 4th RespondentsFor Respondent(s)

 

Appearances

S. Ngbakor with him, C.C. Chidiebere and T. ImomienrohFor Appellant

 

AND

E. Ohwovoriole, SAN with him, Mrs. O.U. Molokwu and Miss. O.P. Dafiagor for the 3rd and 4th RespondentsFor Respondent