ZUWOGHE v. APC & ORS
(2021)LCN/15897(CA)
In the Court of Appeal
(PORT HARCOURT JUDICIAL DIVISION)
On Monday, February 01, 2021
CA/PH/33/2021
Before Our Lordships:
Uchechukwu Onyemenam Justice of the Court of Appeal
Jamilu Yammama Tukur Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Between
HON. CLEOPAS MOSES ZUWOGHE APPELANT(S)
And
1. ALL PROGRESSIVES CONGRESS (APC) 2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) 3. ABEL EBI FEMOWEI (APC SENATORIAL CANDIDATE FOR THE OCTOBER, 2020 BAYELSA CENTRAL SENATORIAL DISTRICT BYE-ELECTION, BAYELSA STATE) RESPONDENT(S)
RATIO
REQUIREMENTS TO QUALIFY FOR ELECTION TO THE SENATE OR HOUSE OF REPRESENTATIVE
Section 66 (1) (i) provides that:
“No person shall be qualified for election to the Senate or the House of Representative if –
(i) He has presented a forged certificate to INEC.”
Sections 31(2) (5) and (6) of the Electoral Act, 2010 (as amended) provide thus:
“(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 the entire 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 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.”
By virtue of Section 66(1) (i) of the 1999 Constitution, no person shall be qualified for election into the Senate or the House of Representatives if he/she has presented a forged certificate to INEC. This provision of the constitution is unambiguous and it serves the purpose of preventing anyone who has presented INEC with a certificate that is forged from contesting in any subsequent election. The person stands automatically disqualified from all future elections where a Court or a Tribunal finds the certificate to have been forged. See SALEH V. ABAH (2017) 12 NWLR (PT 1578) 100.
Section 31 (5) of the Electoral Act, 2010, as amended, empowers any person with reasonable grounds to believe that any information given by a candidate is false to institute an action before any of the High Courts to seek a declaration, that such information is false. See LAWRENCE V. PDP & ORS (2017) LPELR 42610 (SC). PER IDRIS, J.C.A.
WHETHER OR NOT A MAN CAN BE PUNISHED FOR A MISTAKE NOT CAUSED BY HIM
Our jurisprudence both civil and criminal does not support punishing a man vicariously, for a mistake not made or caused by him.
The decision in DIDE & ANOR V. EBIOTU SELEKETIMBI & ORS (2009) LPELR-4038, and those of the apex Court in PDP & ORS V. DEGI-EREMIENYO (2020) LPELR-497334 (SC) and MODIBBO V. USMAN (2020) 3 NWLR (PT 1712) 470 amongst others, cited by learned counsel to the Appellant herein remains the law, but they are clearly inapplicable to the facts of this case. In this case, quite apart from the fact that the 3rd Respondent gave satisfactory explanation to the emergence of his date of birth on the WAEC certificate, a fact which the trial Court properly in my view believed, there is no evidence whatsoever to show that the school certificate was forged. It is now settled law that, cases are decided on their peculiar facts, and a case is only an authority for what it decides. See generally, NIGERIA AGIP OIL COMPANY LTD V. NKWEKE (2016) 7 NWLR (PT 1512) 588; INTERDRILL (NIGERIA) LTD V, UNITED BANK FOR AFRICA PLC (2017) 13 NWLR (PT 1581) 52. PER IDRIS, J.C.A.
MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court, Yenagoa Judicial Division, delivered on the 4th day of December, 2020 in Suit No. FHC/YNG/CS/78/2020.
The Appellant herein as Plaintiff before the lower Court commenced this suit which gave rise to this appeal vide an Originating Summons dated and filed on the 23rd day of September, 2020, wherein, the Appellant submitted for the determination of the Court the following questions:
1. Whether upon the construction and interpretation of the Constitutional provisions of Section 6(6) of the 1999 Constitution (as amended), Section 31 (5) and (6) of the Electoral Act, 2010 (as amended) and decided judicial authorities, the 3rd defendant has presented false information to the 1st and 2nd defendants when he respectively on oath, in his 2020 INEC Form EC-9 – Affidavit in support of personal particulars of persons seeking election to the Senate dated 9/9/2020 (Exhibit Cleopas 2) and in his Statutory Declaration of Age sworn to at the Magistrates Court Yenagoa on the 27th November, 2007 by his father (Chief Abel Femowei) (Exhibit Cleopas 2A) presented his date of birth to be 6th December 1962, but in a swift, in an O level WAEC (WASSC) JUNE 2020 Certificate No. NGWASSCS 3404214 (Exhibit Cleopas 2B) falsely presented his date of birth to the 1st and 2nd defendants as May 15th, 1968.
2. If the answer to question 1 above is in the affirmative, having regard to the express provisions of Section 31(5) and (6) of the Electoral Act, 2010 (as amended) and decided judicial authorities, the 3rd defendant is qualified to contest the forthcoming Bayelsa Central Senatorial District Bye-election slated to hold on the 31/10/2020 or any other date thereabout on the platform of the 1st defendant or any other political party having presented false information.
The Appellant therefore sought for the disqualification of the 3rd Respondent by virtue of Section 31(5) and (6) of the Electoral Act, 2010 (as amended) in the following terms:
(a) A declaration that upon the construction and interpretation of the constitutional provisions of Section 6(6) of the 1999 Constitution (as amended), Section 31(5) and (6) of the Electoral Act, 2010, (as amended) and decided judicial authorities, the 3rd defendant has presented false information to the 1st and 2nd defendants when he respectively on oath in his 2020 INEC Form EC-9 – Affidavit in support of personal particulars of persons seeking election to the Senate dated 9/9/2020 (Exhibit Cleopas 2) and in his Statutory Declaration of Age sworn to at the Magistrates Court Yenagoa on the 27th November, 2007 by his father (Chief Abel Femowei) (Exhibit Cleopas 2A) presented his date of birth to be 6th December 1962, but in a swift, in an O level WAEC (WASSC) JUNE 2020 Certificate No. NGWASSCS 3404214 (Exhibit Cleopas 2B) falsely presented his date of birth to the 1st and 2nd defendants as May 15th, 1968 on the other part.
(b) A declaration that by virtue of the express provisions of Section 31(5) and (6) of the Electoral Act, 2010 (as amended) and decided judicial authorities vis-a-vis the false information presented by the 3rd defendant to the 1st and 2nd defendants in support of his nomination for the forthcoming October 31st, 2020 Bayelsa Central Senatorial District Bye- election in Bayelsa State, the 3rd defendant is not qualified to contest the forthcoming Bayelsa Central Senatorial District Bye election slated to hold on the 31/10/2020 or any other date thereabout on the platform of the 1st defendant or any other political party.
(c) An order disqualifying the 3rd defendant as the Senatorial candidate of the 1st defendant in the 31/10/2020 or any other date thereabout for the Bayelsa Central Senatorial District Bye election by reason of the 3rd defendant presenting false information to the 1st and 2nd defendants (INEC) in support of his nomination contrary to Section 31 (5) and (6) of the 2010 Electoral Act (as amended).
(d) An order setting aside or cancelling or annulling the nomination of the 3rd defendant as the Senatorial candidate of the 1st defendant in the 31/10/2020 or any other date thereabout for the Bayelsa Central Senatorial District Bye election on the ground of the 1st defendant to field a qualified senatorial candidate in the said senatorial bye-election for Bayelsa Central, Bayelsa State.
(e) And for such other or further consequential order or orders as this Honorable Court may deem fit to make as the circumstances of this case may require in the interest of justice.
The brief facts of this case are that upon the conclusion of the 1st Respondents primary election, the name of the 3rd Respondent was submitted as the All Progressive Congress (APC) nominated candidate for the bye-Election scheduled to hold on the 31st October, 2020 or any other date thereabout in Bayelsa Central Senatorial District. The 2nd Respondent subsequently published the INEC Form EC9 of the 3rd Respondent as the Senatorial candidate of the 1st Respondent for the 5th December 2020 re-scheduled bye-election.
Consequent upon this publication of the INEC Form EC9 of the 3rd Respondent, the Appellant filed the suit at the lower Court on the 25th September 2020. His claims have been stated in the preceding paragraphs of this judgment.
The Appellant’s main ground in seeking to disqualify the 3rd Respondent was that the 3rd Respondent presented falsely his date of birth on the School Certificate he attached to his INEC Form EC9 and forwarded it to the 2nd Respondent which published his name among the candidates submitted by the respective registered political parties for the bye-election then scheduled for 5th December 2020. The Appellant relied on Exhibits Cleopas 1, 1A, 1B, 2, 2A, 2B, 2C, 2D in urging the trial Court to grant his claims.
The Respondents filed their respective processes in opposition. The 3rd Respondent in particular denied the allegations and maintained that the date of birth appearing on the West African Senior School Certificate to wit; May 15th, 1968 was wrongly or erroneously entered for him by WAEC which issued the said certificate, and that his effort since 2010 to have the error corrected had proved abortive. He relied on exhibits AEF 1-3 to oppose the grant of the Appellant’s claims.
Upon hearing all the parties to the suit, the lower Court dismissed the claim of the Appellant, and held inter alia at page 240 of the record of appeal as follows:
“I am in complete agreement with the submission of the 2nd defendant that the intention of the law maker is not to disqualify any candidate based on any alleged false declaration or inconsistency in the INEC Form EC9 rather, the law was made to disqualify any candidate who makes false information in order to gain advantage of the Constitutional requirement for qualification as approved for in Section 66 of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
In this instant case, the 3rd defendant meets the age requirement of 35 years for the office of Senate which can be seen in the face of INEC Form EC9″.
Being dissatisfied with the judgment of the trial Court, the Appellant has now appealed to this Court vide his Notice of Appeal filed on the 16th of December 2020.
The parties, in this case being the Appellant and the 3rd Respondent, filed their respective briefs which were adopted at the hearing of the appeal. Before the briefs were adopted, the learned counsel to the 3rd Respondent withdrew the Notice of Preliminary Objection he had filed to the hearing of the appeal and same was struck out accordingly.
In the brief filed on behalf of the Appellant, the following issues were formulated for the determination of this Court:
1. Whether having regard to the provision and interpretation of Section 31(5) and (6) of the Electoral Act, 2010 (as amended) and the state of decided judicial authorities, the 3rd Respondent presented false information when he stated to the 2nd Respondent on oath in his 2020 INEC Form EC9 respectively on oath presented 3rd Respondents date of birth as 6th December, 1962, 3rd Respondent is the O Level WAEC June 2020 Certificate NO. NGWASSCSN 3404214 on oath presented his date of birth different as May 15th, 1968.
2. On a dispassionate examination/consideration of the documentary evidence before the lower Court read along with Section 31 (5) and (6) of Electoral Act (as amended), was the 3rd Respondent qualified to contest the Senatorial bye-election for Bayelsa Central Senatorial District bye-election held on the 5th of December 2020.
On the first issue, it was argued that the 3rd Respondent could not lawfully give or present his date of birth to INEC in two forms of varied and different dates. That the trial Court erred in law when he held that the false information about the age of the 3rd Respondent contained in his WAEC School Certificate did not give him any advantage and that he was qualified to contest the election. That the feeble attempt to have WAEC attempt to correct the false information of age in the School Certificate was done during the pendency of the suit at the trial Court or in anticipation of a suit since the 3rd Respondent had deliberately presented false information to INEC to support his nomination. The cases of NWOSU V. OGAH (2017) LPELR-42743; UDEAGBA V. OMEGARA (2010) 11 NWLR (PT 1201) 203 AKINBISADE V. STATE (2006) 17 NWLR (PT 1007) 184 were cited in support.
It was further argued that having found that there were inconsistencies in the ages of birth of the 3rd Respondent, the trial Court was wrong in finding that those inconsistencies could not disqualify the 3rd Respondent as a candidate. It was contended that the variations in the information presented to the 3rd Respondent for his nomination and election were false information. The cases of PDP & ORS V. DEGI-EREMIENYO & ORS (2020) LPELR-49734; NWOSU V. PDP & 3 ORS; OGAH V. PDP & 3 ORS (2017) LPELR-42372 were relied on.
The Court was urged to resolve the first issue in favour of the Appellant against the Respondents.
In respect of the second issue, learned counsel for the Appellant argued that the sanction against the 3rd Respondent for presenting to INEC Form EC9 containing false facts or facts about his personal particulars or information is an order disqualifying the said 3rd Respondent by virtue of Section 31(6) of the Electoral Act, 2010 (as amended). The case of ANGOS DIDE & ANOR V. SELEKETIMIBI & ORS (2009) LPELR-4038 was relied on.
It was also argued that notwithstanding the fact that a person is qualified for election as a member of the Senate under Section 66(1)(b), he would be disqualified by virtue of Section 66(1)(i) if he is adjudged to have presented a false certificate to INEC. That where a person is alleged not to have complied with the provision of Section 66(1)(i) of the Constitution and Section 31(2) of the Electoral Act on the ground that he submitted forged documents or made false declaration to INEC, the sanction by Section 31 (6) was a disqualification from contesting the election. The cases of IMAM V. SHERIFF (2005) 4 NWLR (PT 914) 80; MODIBBO V. USMAN (2020) 3 NWLR (PT 1712) 470 were relied on.
In concluding, learned counsel for the Appellant urged the Court to resolve this issue, and all the issues in favour of the Appellant and grant all the reliefs sought at the trial Court in the interest of justice.
The 1st and 2nd Respondents did not file any brief, and did not appear at the hearing of the appeal.
In the brief filed by the 3rd Respondent, the following issues were formulated for the determination of this Court:
(1) Whether the Court below was not right in holding that 3rd Respondent met the age requirement of 35 years for the office of Senate and that it would be out of place for the Appellant to claim that the 3rd Respondent presented false information because of the date of birth on the O Level WASSC June 2002 certificate is May, 15th 1968?
(2) Whether Court below was not right in the circumstances of this case in refusing to issue an order of disqualification against the 3rd Respondent?
Arguing both issues together, learned counsel to the 3rd Respondent argued that the Appellant did not prove that the 3rd Respondent presented false information on oath to the 1st and 2nd Respondents. That the Court below believed the fact that the 3rd Respondent was not the maker of the WAEC (WASSC) June 2002 certificate with May 15th, 1968. Learned counsel then submitted that mistake as to date of birth which appears erroneously on a certificate is not a ground for disqualification of a candidate who is otherwise qualified to contest an election. The cases of EZECHUKWU V. ONWUKA (2016) ALL FWLR (PT 824) 148; MTN V. CORPORATE COMMUNICATIONS INVESTMENT LTD (2019) LPELR-47042 (SC) ADELEKE V. RAHEEM & ORS (2019) LPELR-48729 were retied on.
Learned counsel for the 3rd Respondent argued that the issue of allegedly presenting false information to the 2nd Respondent is an allegation of crime which the Appellant ought to have proved beyond reasonable doubt but had failed to do so. It was submitted that the Appellant did not prove his case even on the preponderance of evidence. The following cases were relied on: MOHAMMED V. WAMMAKO (2018) 7 NWLR (PT 1619) 573; MAIHAJA V. GAIDAM (2018) 4 NWLR (PT 1610) 454; AGI V. PDP (2017) 17 NWLR (PT 1595) 386; SALEH V. ABAH (2017) 12 NWLR (PT 1575) 100; NYESOM V. PETERSIDE (2016) 7 NWLR (PT 1512) 452.
The Court was urged to dismiss the appeal for want of merit and uphold the decision of the Court below.
The Appellant filed a Reply Brief, but, it is in the main, a re-argument of the issues already dealt with in the initial brief filed by the same Appellant, therefore, it needs not be repeated herein.
RESOLUTION OF THE ISSUES
I have read the briefs filed by the respective learned counsel for the parties herein, and for the purpose of determining this appeal, I will adopt the issues formulated by the learned counsel for the Appellant. The issues again are as follows:
1. Whether having regard to the provision and interpretation of Section 31(5) and (6) of the Electoral Act, 2010 (as amended), and the state of decided judicial authorities, the 3rd Respondent presented false information when he stated to the 2nd Respondent on oath in his 2020 INEC Form EC9 respectively on oath presented 3rd Respondents date of birth as 6th December, 1962, 3rd Respondent is the O Level WAEC June 2020 Certificate NO. NGWASSCSN 3404214 on oath presented his date of birth different as May 15th, 1968.
2. On a dispassionate examination/consideration of the documentary evidence before the lower Court read along with Section 31(5) and (6) of Electoral Act (as amended), was the 3rd Respondent qualified to contest the Senatorial Bye-election for Bayelsa Central, Senatorial District Bye-election held on the 5th of December 2020.
Both issues will be dealt with together because they are intertwined.
Because the issues involved in this appeal revolve around an election into the Senate of the Federal Republic on Nigeria, I shall hereunder reproduce the relevant provisions of Sections 66(1) (i) of the 1999 Constitution and Sections 31(2) (5) and (6) of the Electoral Act, 2010 (as amended).
Section 66 (1) (i) provides that:
“No person shall be qualified for election to the Senate or the House of Representative if –
(i) He has presented a forged certificate to INEC.”
Sections 31(2) (5) and (6) of the Electoral Act, 2010 (as amended) provide thus:
“(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 the entire 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 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.”
By virtue of Section 66(1) (i) of the 1999 Constitution, no person shall be qualified for election into the Senate or the House of Representatives if he/she has presented a forged certificate to INEC. This provision of the constitution is unambiguous and it serves the purpose of preventing anyone who has presented INEC with a certificate that is forged from contesting in any subsequent election. The person stands automatically disqualified from all future elections where a Court or a Tribunal finds the certificate to have been forged. See SALEH V. ABAH (2017) 12 NWLR (PT 1578) 100.
Section 31 (5) of the Electoral Act, 2010, as amended, empowers any person with reasonable grounds to believe that any information given by a candidate is false to institute an action before any of the High Courts to seek a declaration, that such information is false. See LAWRENCE V. PDP & ORS (2017) LPELR 42610 (SC).
By the provision of Section 31(6) of the Electoral Act, as amended, where the Court finds any information supplied by a candidate as contained in the affidavit filed pursuant to Section 31(2), or any document submitted by a candidate is false, the Court shall make an order disqualifying that person from contesting an election.
By the combined provisions of Sections 66(1) (i) of the 1999 Constitution and Sections 31(5) and (6) of the Electoral Act, 2010, as amended, notwithstanding the fact that a person is qualified for election as a member of the Senate under Section 66(1) (b) of the 1999 Constitution, where he is found to be in breach of Sections 66(1) (i) of the Constitution and/or Sections 31(5) and (6) of the Electoral Act, 2010, as amended, he could be disqualified from contesting an election or future elections by a Court of competent jurisdiction. The reason for these provisions is simply to prevent and preclude persons of questionable character and integrity from finding places in the hallowed chambers of our legislature. See DAHIRU & ANOR V. ADAM & ORS (2011) LPELR-4251 (CA); SALEH V. ABAH (2017) 12 NWLR (PT 1578) 100.
Enough has been said of the law, now to the application of the law to the facts of the case.
After carrying out a microscopic examination of the processes filed at the lower Court, it is clear that in attempting to establish the fact of disqualification of the 3rd Respondent, the Appellant herein placed reliance on the documents marked at Exhibits Cleopas 2, 2A, 2B and 2D as per paragraph 12 of the affidavit in support of the Originating Summons. The 3rd Respondent denied the charge of knowingly presenting a false date of birth in his school certificate issued to him by the examination body but maintained that the date of birth appearing on the West African School Certificate (WASSC) to wit; May 15th, 1968, was wrongly or erroneously entered for him by the issuing authority, and that he had no reason whatsoever to tell a lie about his declared age as stated in his documents as evidenced in Exhibits Cleopas 2, 2A, 2C and 2D attached to the affidavit in support of the Originating Summons. The 3rd Respondent also brought before the Court, his National Identification Card and INEC Voters Card all bearing his date of birth as 6th December, 1962.
From the exhibits attached to the processes filed by the Appellant, and the 3rd Respondent in exhibits AEF 1-3, before the lower Court, the following facts are indisputable:
(a) That the 3rd Respondent in filing the INEC Form EC9 stated his declared statutory date of birth of 6th December, 1962. See page 16 of the record of appeal.
(b) That the 3rd Respondent maintained his date of birth of 6th December 1962 in his APC Membership Card issued in 2015. See page 22 of the record of appeal.
(c) That the 3rd Respondent maintained his date of birth of 6th December 1962 in his INEC Voters Card Number A00294295 issued to him. See pages 23 and 113 of the record of appeal.
(d) That the 3rd Respondent stated his date of birth as 6th December, 1962 in his National Identity Card. See page 114 of the record of appeal.
(e) That the dates appearing on Exhibits Cleopas 2A as well as Exhibits AEF 1-3 is 6th December, 1962 as attested to statutorily on the 27th day of November 2007. See page 20 of the record of appeal.
Exhibit 2 which is the Form EC9 gives the date of birth as 6th December 1962. However, in part C of the said exhibit, a candidate is expected to state the schools attended and his educational qualifications, and also attach evidence of all educational qualifications. It is clear to me, that to show that he had the requisite educational qualification to contest the election, the 3rd Respondent was constrained to attach his WASSC certificate even though it had May 15th, 1968 as his date of birth, since the issuing authority would not correct the error despite his efforts to get it to do so. I refer to paragraph 8 sub-paragraphs vii-xiv of the 3rd Respondent’s counter-affidavit which can be found at pages 110 to 121 of the record of appeal.
It must be noted that there is no evidence that the statutory declaration of age as per exhibit Cleopas 2A dated 6th December, 1962, is wrong or incorrect. It is only in respect of Exhibit Cleopas 2B that the loudest noise is made. On this exhibit, it is clear from paragraphs 6, 7, 8, 9 and 10 of the counter-affidavit of the 3rd Respondent that the date of birth appearing on the vexed exhibit is the product of the issuing authority which has the sole prerogative to issue and correct any error or mistake therein. The Appellant has not contended that the said exhibit is fake or that it did not belong to the 3rd Respondent.
In my respective view, a mistake as to date which appears on a certificate such as Exhibit Cleopas 2B is not enough to warrant the disqualification of a candidate who is otherwise qualified in law to contest an election.
The 3rd Respondent has shown that the date May 15th, 1968 appearing on his Senior Secondary School Certificate, which is not his own making, was wrongly entered for him by the issuing authority, and that cannot be a valid reason for this Court to issue an order disqualifying him from contesting an election. The 3rd Respondent showed the abortive effort he made since 2010, about 11 years ago, to ensure that the said error as to his date of birth is corrected. He did this by writing to the Principal of the Community Secondary School, Ogboinbiri, where he sat for the WAEC examinations (See Exhibit AEF-3). There is no doubt that this institution is recognized by WAEC as its agent for the conduct of examinations that led to the issuance of the certificate bearing the erroneous date of birth of the 3rd Respondent. It is only WAEC that has the power to correct the mistaken date of birth which appears on Exhibit Cleopas 2B. There is nothing to show that the 3rd Respondent is blameworthy or that the 3rd Respondent supplied the wrong date of birth to WAEC. There is nothing to show that the 3rd Respondent had benefitted or gained any advantage through the error. It is significant that in all his dealings, the 3rd Respondent has stuck to his date of birth as recorded in his Statutory Declaration of Age. See exhibits AEF 1 and 2, supported by Exhibits Cleopas 2C and 2D respectively.
Should the 3rd Respondent be punished for the mistake or error of an examination body that he has no control over? I sincerely do not think so. Our jurisprudence both civil and criminal does not support punishing a man vicariously, for a mistake not made or caused by him.
The decision in DIDE & ANOR V. EBIOTU SELEKETIMBI & ORS (2009) LPELR-4038, and those of the apex Court in PDP & ORS V. DEGI-EREMIENYO (2020) LPELR-497334 (SC) and MODIBBO V. USMAN (2020) 3 NWLR (PT 1712) 470 amongst others, cited by learned counsel to the Appellant herein remains the law, but they are clearly inapplicable to the facts of this case. In this case, quite apart from the fact that the 3rd Respondent gave satisfactory explanation to the emergence of his date of birth on the WAEC certificate, a fact which the trial Court properly in my view believed, there is no evidence whatsoever to show that the school certificate was forged. It is now settled law that, cases are decided on their peculiar facts, and a case is only an authority for what it decides. See generally, NIGERIA AGIP OIL COMPANY LTD V. NKWEKE (2016) 7 NWLR (PT 1512) 588; INTERDRILL (NIGERIA) LTD V, UNITED BANK FOR AFRICA PLC (2017) 13 NWLR (PT 1581) 52.
I find myself in agreement with the learned trial Judge when he held at pages 252 to 253 of the record of appeal as follows:
“According to INEC and I am in total agreement with them that the 3rd defendant is the competent person to tell his correct age and this he has done by stating in INEC Form EC9 — Exhibit A, that his valid date of birth is 6th December, 1962 with a confirmation by the Statutory declaration of age sworn by his father.
I find and hold that the 3rd defendant is not the maker of O Level WAEC (WASSC) June, 2002 certificate with May 15th, 1968 as his date of birth, I agree with the submission of the 2nd defendants counsel that such error on the face of the WAEC certificate cannot be treated as false information more so that the error was created by an Institution. Inconsistencies cannot disqualify a candidate…
I find and hold that there is nothing on the face of the 3rd defendants INEC Form EC9 that suggest forgery or misleading and inauthentic. See MISAU V. JIKA & ORS (2019) LPELR-49488 per Oniyangi J.C.A. pages 36-42 paras B–F.
I find and hold that the allegations of false information presented by the 3rd defendant to the 1st and 2nd defendants have not been duly proved by the plaintiff.
I find that this Originating Summons is lacking in merit and it is hereby dismissed in its entirety.
I find and hold that the 3rd defendant is competent and qualified to contest election scheduled to hold on the 5th day of December, 2020…”
The Court below found that the wrong date of birth was not the making of the 3rd Respondent but that of the Institution and that he wrote a letter for the correction of the mistake. I agree with the submission of the learned counsel for the Appellant that the invocation of Section 83(3) of the Evidence Act, 2011, to void the letter is unavailing. It is absolutely wrong to contend that the letter which was written about 11 years ago was done during the pendency of the suit at the trial Court or in anticipation of a suit. The lower Court definitely had the vires to examine the letter and evaluate same and come to the conclusion that it did.
There is nothing in my view to show that the above finding of fact is perverse. An appellate Court will only intervene to upset a finding of a Court on grounds of perversity or when the decision is patently wrong. See ODOM V. PDP(2015) 6 NWLR (PT 1456) 527; OLANIYAN V. FATOKI (2013) 17 NWLR (PT 1384) 477.
In my opinion, Section 31(5) and (6) of the Electoral Act, 2010, (as amended), did not and could not have contemplated that errors and/or mistakes would not appear in any document and whenever such errors and/or mistakes appear, whether explained or not, would amount to false information being given. This is not and cannot be the intention of the legislature. This approach will definitely run contrary to the guiding principles and canons of statutory interpretation.
In the light of all that I have said above, I find no merit in the appeal filed by the Appellant herein and it is hereby dismissed. The decision of the Federal High Court delivered on the 4th day of December, 2020, in Suit No. FHC/YNG/CS/78/2020, is hereby affirmed.
There is no order made as to cost.
UCHUCHUKWU ONYEMENAM, J.C.A.: I agree.
JAMILU YAMMAMA TUKUR, J.C.A.: I agree.
Appearances:
Reuben Egwuaba Esq. For Appellant(s)
C. P. Ezugwu Esq. for the 3rd Respondent. For Respondent(s)
