APC & ANOR v. OBASEKI & ORS (2021)

APC & ANOR v. OBASEKI & ORS

(2021)LCN/15155(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, March 18, 2021

CA/A/71/2021

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Peter Olabisi Ige Justice of the Court of Appeal

Mohammed Mustapha Justice of the Court of Appeal

Between

1. ALL PROGRESSIVES CONGRESS (APC) 2. EDOBOR WILLIAMS APPELANT(S)

And

1. GODWIN NOGHEGHASE OBASEKI 2. PEOPLES DEMOCRATIC PARTY 3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) RESPONDENT(S)

RATIO

WHEN WILL AN APPELLATE COURT INTERFERE WITH THE DECISION OF A TRIAL COURT

The law is settled that an Appellant who complains that the decision of the trial Court is perverse for lack of adequate or proper evaluation of oral and documentary evidence, must prove or establish that the Court of first instance made improper use of opportunity of seeing the witnesses testified before him. He must show that there was misapplication of oral and documentary placed before the lower Court. He must endeavour to prove that the lower Court failed to ascribe probative value to the evidence led or that wrong inferences were drawn leading to wrong conclusions or miscarriage of justice making it imperative for the Appellate Court to intervene and reevaluate the oral and documentary evidence. See; 1. CHIEF JAMES O. OLONADE & ANOR VS. H – B SOWEMIMO (2014) 14 NWLR (PART 1428) 472 AT 495 G – H TO 496 per M. D. MOHAMMED who said: “Firstly, evaluation of relevant and material evidence and the ascription of probative value to such evidence are the primary functions of the trial Court which saw, heard and assessed the witnesses as they testified. Where the trial Court unquestionably evaluate the evidence and justifiably appraises the Facts, as it has been manifestly shown to have been done in the instant case it is not the business of the lower Court, an appellate Court, to substitute its own views for the views of the trial Court. The application of this trite principle by the lower Court cannot, certainly, be a basis for the reversal of the Court’s decision. See Mogaji v. Odofin (1978) 4 SC 91; Ojokolobo v. Alamu (1998) 9 NWLR (Pt. 565) 226 and Sha v. Kwan (2000) 5 SC 178 (2000) 8 NWLR (PT. 670) 685. Secondly, in a civil matter such as this, the Court decides the case on the balance of probabilities or preponderance of evidence. The trial Court does this by first deciding which evidence it accepts from each of the parties, putting the accepted evidence adduced by the plaintiff on one side of the imaginary scale and that of the defendant on the other side of the scale weighing them together. The Court then decides which side’s evidence is heavier, not by the number of witnesses called by either party or on the basis of the one being oral and the other being documentary, but by the quality or probative value of the evidence be it oral and/or documentary. See Fagbenro v. Arobadi (2006) 7 NWLR (PT. 978) 172.” 2. MRS ELIZABETH IRABOR ZACCALA VS MR KINGSLEY EDOSA & ANOR (2018) 6 NWLR (PART 1616) 528 AT 545 B – D per M. D. MUHAMMAD, J.S.C. who said: “It is trite that the trial Court is vested with the primary duty of evaluating evidence and ascribing probative value to same. This primacy in the Court’s responsibility arises out of the fact of the advantage it has of seeing and, from observation of the witnesses, making impressions as they testified. Thus where the trial Court fails to bring the advantage to play in evaluating the evidence of the witnesses or where being documents, as in the instant case, the issue of credibility is not at play, the appellate Court is in as good a position as the trial Court to re- appraise the evidence and make correct inferences. See Atoyebi & Anor v. The Governor of Oyo State & Ors (1994) 5 NWLR (Pt. 344) 290, Dakat v. Dashe (1997) 12 NWLR (Pt. 531) 46 and Ajibulu v. Ajayi (2013) LPELR-21860 (SC): (2014) 2 NWLR (Pt. 1392) 483.” PER PETER OLABISI IGE, J.C.A.

WHETHER IT IS EVERY SLIP OR ERROR BY A LOWER COURT THAT WILL LEAD TO A REVERSAL OF THE LOWER COURT’S DECISION

It must however be borne in mind that it is not every slip or error by a lower Court that will lead to a reversal of the lower Court’s decision unless the findings of the said Court are not supported by oral and documentary evidence on record. See AKINWATA OGBOGU MBANEFO VS. NWAKAIBE MOLOKWU & ORS (2014) 4 SCM 159 at 183 A – H per PETER ODILI, J.S.C. PER PETER OLABISI IGE, J.C.A.

BURDEN PLACED ON A PARTY WHO SEEKS DECLARATION RELIEFS; WHAT MUST A PARTY PROVE TO SUCCEED ON THE ALLEGATION OF FORGERY AND FALSE DECLARATION

I call in aid the provisions of Section 135 (1) and (2) of the Evidence Act, 2011 which provide: “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.” See also: 1. EDWARD NKULEGU OKEREKE VS. NWEZE DAVID UMAHI & ORS (2016) 11 NWLR (PART 1524) 438 AT 489 B – G per KEKER- EKUN, J.S.C. who said: “It has been settled by a long list of authorities of this Court that: (1) Where a party seeks declaration reliefs, the burden is on him to establish his claim. He must succeed on the strength of his own case and not on the weakness of the defence (if any), such reliefs will not be granted even on the admission of the defendant. See: Emenike v. PDP (2012) LPELR – SC 443/2011 p. 27, O – G; (2012) 12 WLR (Pt. 1315) 556; Dumez Ltd v. Nwakhoba (2008) 18 NWLR (Pt.119) 361 at 373 – 374; Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205, 297 – 298 F – A; Ucha v. Elechi (2012) 13 NWLR (Pt. 1317) 330.” 2. DR. SAMPSON UCHECHUKWU OGAH VS DR OKEZIE VICTOR IKPEAZU (2017) 17 NWLR (PART 1594) 299 AT 336 G – H TO 337A per M. D. MUHAMMED, J.S.C. who held: – “I agree with learned senior counsel to both respondents that the appellant having asserted that 1st respondent’s tax declaration in Form CF001 is false has the burden of proving what he asserts. Addedly, the reliefs the appellant seeks being declaratory, he succeeds on the strength of his case alone and not on the weakness of the case of the respondents. The appellant has the burden of proof to establish the declaratory reliefs to the satisfaction of the Court. Being declaratory, the reliefs are not granted even on the admission of the respondents. See Dumez (Nig.) Ltd. v. Nwakhoba (2008) 18 NWLR (Pt. 1119) 361 and Senator lyiola Omisore & Anor v. Ogbeni Rauf Adesoji Aregbesola & Ors (2015) LPELR; (2015) 15 NWLR (Pt. 1482) 205. “To succeed in his claim, therefore, the appellant must, in the final analysis establish that the 1st respondent never paid the tax he declared in Form CF001, exhibit D, to have paid as evidenced by exhibits A, B and C the tax receipts and tax clearance certificate respectively.” In the same case KEKERE-EKUN, J.S.C. had this to say on pages 348 H to 349 A: “By the assertion that the documents submitted are false, there is an inherent allegation of dishonesty. It is implied that the documents submitted were concocted or that the originals were altered for the purpose of allowing the 1st respondent to contest the election under false pretences i.e., that he had complied fully with the requirements of the law and the PDP Guidelines. In other words, a crime is being imputed to the 1st respondent. In such circumstances, the appellant has the additional burden of proving his allegations beyond reasonable doubt. See Section 135(1) of the Evidence Act, 2011.” In the same report on page 350 F – H thereof EKO, J.S.C. said: – “I wish to merely add that either under Section 31 (5) and (6) of the Electoral Act, 2010 (as amended), or Section 182 (1)(j) of the 1999 Constitution, as altered, the burden of proof imposed by Sections 131 – 139 of the Evidence Act, 2011 is not displaced. Whoever asserts under Section 31 (5) of the Electoral Act that “any information given by a candidate in the affidavit or any document submitted by that candidate is false” has the burden of proving his assertion in order to be entitled to judgment under Section 31 (6) of the Electoral Act, 2010. Similarly, whoever asserts that the candidate in an election had “presented forged certificate to the Independent National Electoral Commission” has the onus of proving beyond reasonable doubt that the candidate had in fact presented a forged certificate. In any proceeding where commission of crime by a party is directly in issue the proof beyond reasonable doubt is the standard of proof. See Nwobodo v. Onoh (1984) 1 SCNLR 1; Torti v. Ukpabi (1984) 1 NSCC 141 at 145, (1984) I SCNLR 214.” 3. ENGR. MUSTAPHA YUNUSA MAIHAJA VS ALHAJI IBRAHIM GAIDAM & ORS (2018) 4 NWLR (PART 1610) 454 AT 489 A- B per BAGE, J.S.C. who said. “The necessary question is what must a party prove to succeed on the allegation of forgery and false declaration. As rightly held by the Court below, it is crucial to prove: (1) The existence of a document in writing; (2) That the document or writing was forged; (3) That the forgery was by the person being accused; (4) That the party who made it knew that the document or writing was false; and (5) The party alleged intended the forged document to be acted upon as genuine.” See Alhaji Kashim Ibrahim Imam & 2 Ors v. Senator Ali Modu Sheriff & 11 Ors (2005) 4 NWLR (Pt.914) 80 and APC v. PDP (2015) 15 NWLR (Pt. 1481) 1. PER PETER OLABISI IGE, J.C.A.

STANDARD OF PROOF REQUIRED IN PROVING ALLEGATION OF FALSE INFORMATION

The nature of evidence required in this kind of situation is similar to that of “mathematical precision” of two multiplied by two equals four (2×2=4).” 4. ATIKU ABUBAKAR & ANOR VS. INEC & ORS (2020) 12 NWLR (PART 1737) 37 at 110 B – C per I. T. MOHAMMED, CJN who said: – “Let me clearly state here that the allegation made against the 2nd respondent by the appellants that he gave false information in his affidavit to the 1st respondent is firmly rooted in criminality which must be proved beyond reasonable doubt. It is not enough for the appellants to make such allegation: they must go further to lead credible evidence to prove such allegation. See Agi v. PDP (2016) LPELR – 42578 (SC): (2017) 17 NWLR (Pt. 1595) 386. Yusufu v. Obasanjo (2003) 16 NWLR (Pt.847) 554, Waziri v. Geidam (2016) 11 NWLR (Pt. 1523) 230, Emmanuel Udom v. Umana (No. 1) (2016) 12 NWLR (Pt. 1526) 179. Okechukwu v INEC (2014) 17 NWLR (Pt. 1436) 255.” On page 154 G- H of the Report SANUSI, J.S.C. also said: – “In fact, where some allegations of corruption forgery or falsification are alleged, such allegations having the flavour of criminality must be proved beyond reasonable doubt. See Ojukwu v. Yar’adua (2009) 12 NWLR (Pt. 1154) 50 at 140: Imere v. Salami (1989) 2 NEPLR 131. Omisore v Aregbesola (2015) 15 NWLR (Pt.1482) 205 at 321. It needs to be noted here that the appellants failed to lead adequate and reliable evidence to establish what had actually transpired in various election areas in the entire nation. See Buhari v Obasanjo (2005) 13 NWLR (Pt.941) 1 at 299: Andrew v. INEC (2018) 9 NWLR (Pt. 1625) 507.” PER PETER OLABISI IGE, J.C.A.

POSITION OF THE LAW REGARDING HEARSAY EVIDENCE

Hearsay evidence has been defined to mean oral or Written Statement made otherwise than by a witness in a proceeding. A statement may or may not be hearsay. It is admissible and it is not hearsay where all the witness wants to establish is the fact that the statement oral or written came to his knowledge but not the establishment of the truth or otherwise of the statement which may be oral or documentary. See Sections 37 and 38 of the Evidence Act which provide as follows: “37. Hearsay means a statement- (a) oral or written made otherwise than by a witness in a proceeding; or (b) contained or recorded in a book, document or any record whatever, proof of which is not admissible under any provision of this Act, which is tendered in evidence for the purpose of proving the truth of the matter stated in it. 38. Hearsay evidence is not admissible except as provided in this Part or by or under any other provision of this or any other Act.” 1. GODDY EDOSA & ANOR V MRS E. OGIEMWANRE (2019) 8 NWLR (PART 1673) 1 AT 28 D – E per GALUMJE, J.S.C. who said: – “Relevant to this judgment is Section 37(a) of the Evidence Act. Black’s Law Dictionary, 9th Edition at page 790, defines hearsay as follows:-
“Traditionally, testimony that is given by a witness who relates not what he or she knows personally but what others have said and that is therefore dependent on the credibility of someone other than the witness, such testimony is generally inadmissible under the rules of evidence.” Finally, Section 38 of the Evidence Act 2011 outrightly prohibits the admission of hearsay evidence except as provided by the Evidence Act in the following words: – “Hearsay evidence is not admissible except as provided in this part or under any other provision of this or any other Act.” PER PETER OLABISI IGE, J.C.A.

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): By their Writ of Summons dated and filed the 14th day of July, 2020 the Appellants as Plaintiffs instituted this action against the Respondents as Defendants to the said suit claiming against the said Defendants jointly and severally as follows:
1. A DECLARATION that the 1st Defendant’s INEC Form EC9 at column “C” thereof sworn to on 29th June, 2020 at the Federal Capital Territory High Court Registry, Abuja, to the effect that the 1st Defendant obtained from the university of Ibadan in 1979, a Bachelor of Arts Degree in Classical studies is false and contrary to Section 31(5) and (6) of the Electoral Act, 2010 (as amended).
IN THE ALTERNATIVE
A DECLARATION that the 1st Defendant’s INEC Form CF001 at column “C” thereof sworn to on 11th July, 2016 at the High Court Registry, Benin City, to the effect that the 1st Defendant obtained from the University of Ibadan in 1976, a Bachelor of Arts Degree in Classical studies is false and contrary to Section 31(5) and (6) of the Electoral Act, 2010, (as amended).
2. A DECLARATION that the 1st Defendant’s statement contained in

INEC Form EC9 at column “D” thereof sworn to on 29th June, 2020 at the Federal Capital Territory High Court Registry, Abuja to the effect that the 1st Defendant worked in Afrinvest Ltd from 1994 to 2014 when he retired is false and contrary to Section 31(5) and (6) of the Electoral Act, 2010, (as amended).
3. A DECLARATION that the 1st Defendant’s presentation of a Bachelor of Arts Degree in Classical studies from the University of Ibadan with a sole signatory of the Vice-Chancellor, no effective date of award as against the standard operating procedure of the Examination, Records and Administrative Data processing Division of the University of Ibadan amounts to the presentation of a forged/false certificate to the Independent National Electoral Commission contrary to the provisions of Section 182(1)(j) of the Constitution of the Federal Republic of Nigeria, 1999 (as altered).
4. A DECLARATION that the 1st Defendant’s presentation of Advanced Level WAEC Certificate dated June, 1976 which showed that the 1st Defendant sat for examination in subjects materially different from those shown in the Testimonial of the Institute of continuing Education of

25th September, 1975, where 1st Defendant was a student and from where he purportedly wrote the said examination, amounts to the presentation of a forged/false certificate to the Independent National Electoral Commission contrary to the Provisions of Section 182(1)(j) of the Constitution of the Federal Republic of Nigeria, 1999 (as altered).
IN THE ALTERNATIVE
A DECLARATION that the 1st Defendant’s presentation of the Testimonial of the Institute of continuing Education of 25th September, 1975 where 1st Defendant was a student and from where he purportedly wrote the said examination and which shows that the 1st Defendant sat for examination in subjects materially different from those shown in the Advanced Level WAEC Certificate dated June, 1976, amounts to the presentation of a forged/false certificate to the Independent National Electoral commission contrary to the Provisions of Section 182(1)(j) of the Constitution of the Federal Republic of Nigeria, 1999 (as altered).
5. A DECLARATION that the 1st Defendant misled the 3rd Defendant by his false statement on oath and presentation of false certificate to the effect that 1st Defendant had a

university Degree from the university of Ibadan an Advanced Level WAEC certificate/Testimonial from Institute of continuing Education before listing the 1st Defendant as a candidate for the Edo State Governorship Election scheduled for 19th September, 2020 or on any other date that may be appointed for the purpose.
6. A DECLARATION that 1st Defendant is disqualified from contesting election to the office of Governor of Edo State for non-fulfillment of the constitutional Requirement in Section 182(1)(j) of the Constitution of the Federal Republic of Nigeria, 1999 (as altered) and upon presenting false/forged Certificate to Independent National Electoral Commission and contrary to Section 31 (5) and (6) of the Electoral Act, 2010 (as amended).
7. A DECLARATION that the 2nd Defendant having sponsored a candidate who supplied false information on oath and presented false/forged certificates to 3rd Defendant contrary to Section 31 (5) and (6) of the Electoral Act 2010 (as amended) and Section 182(1(j) of the Constitution of the Federal Republic of Nigeria. 1999 (as altered) is not entitled to participate in the Election scheduled for 19th September,

2020 or on any other date that may be appointed for the purpose.
8. A DECLARATION that upon the conduct of the Governorship Election of Edo State slated for 19th September, 2020, or on any other date that may be appointed for the purpose, any vote or votes scored by the 1st and 2nd Defendants be declared invalid, null, void and of no effect whatsoever as votes scored by an unqualified candidate of the 2nd Defendant.
9. AN ORDER disqualifying the 1st Defendant from contesting the Edo State Governorship Election scheduled for 19th September, 2020 or on any other date that may be appointed for the purpose on the ground that 1st Defendant supplied false information on bath to 3rd Defendant contrary to Section 31 (5) and (6) of the Electoral Act, 2010 (as amended).
10. AN ORDER disqualifying the 1st Defendant from contesting the election to the office of governor of Edo State, scheduled for 19th September, 2020 or on any other date that may be appointed for the purpose on the ground of non-fulfillment of the Constitutional requirement in Section 182(1)(j) of the Constitution of the Federal Republic of Nigeria, 1999 (as altered).

AN ORDER OF MANDATORY INJUNCTION directing the 3rd Defendant to remove from its list of nominated or sponsored candidates eligible to contest election in the election scheduled for 19th September, 2020 for the office of Governor of Edo State or any list, ballot paper or election records or materials bearing the name of the 1st Defendant as the sponsored candidate submitted by the 2nd Defendant to the 3rd Defendant to contest election to the office of Governor of Edo State scheduled for 19th September, 2020 or on any other that may be appointed for the purpose.
12. AN ORDER OF INJUNCTION restraining the 2nd Defendant by itself or through its servants, privies, members, agents or associates from parading or representing itself as having sponsored or nominated the 1st Defendant or canvas for vote in whatsoever manner for 1st Defendant in respect of the election to the office of Governor of Edo State scheduled for 19th September, 2020 or on any other date that may be appointed for the purpose.
13. AN ORDER OF INJUNCTION restraining the 3rd Defendant by itself or by its agents from according any form of recognition to the 1st Defendant as a candidate nominated

by the 2nd Defendant to contest election to the office of Governor of Edo State scheduled for 19th September, 2020 or on any other date that may be appointed for the purpose.
14. AN ORDER OF INJUNCTION restraining the 3rd Defendant by itself or by its agents from allowing the 2nd Defendant to parade itself as a political party entitled to nominate and sponsor the 1st Defendant to contest election to the office of Governor of Edo State scheduled for 19th September, 2020 or on any other date that may be appointed for the purpose, on the ground that the 1st Defendant is disqualified from contesting the said election.
15. ANY OTHER ORDER OR ORDER that the Honourable Court may deem fit to make in this circumstance.”

The same set of reliefs were replicated in paragraph 29 of the statement of claim which accompanied the aforesaid Writ of Summons. After exchange of pleadings, the matter proceeded to trial. The Appellants called six (6) witnesses in order to sustain their claims against the Respondents while the 1st Respondent called three (3) witnesses in Defence of the Appellants claims.

After the adoption of Written Addresses by Learned

Counsel to the parties, the learned trial Judge gave considered judgment in the matter on 9th January, 2021, and found among other things as follows:
“In the instant case, exhibits D1, D2, D3 and D4 are all direct evidence showing that the 1st Defendant did not forge any of his educational documents submitted to INEC (3rd Defendant) in this suit. To crown it all, DW2, who is the Deputy Registrar (Legal) in the University of Ibadan identified exhibit D4, that is, the original copy of the Degree Certificate awarded to the 1st Defendant by the University of Ibadan and stated in paragraphs 7, 8, 9 and 10 of his witness statement on oath deposed to on 31/12/20, which I hereby reproduced.
7. That I know as fact and from available records at my disposal that the 1st Defendant entered the University of Ibadan in 1976 while he was admitted to read classics (later renamed Classical Studies around 1979).
8. That I know as a fact and from available records at my disposal that the Bachelor of Arts Degree Certificate was duly issued to the 1st Defendant, GODWIN NOGHEGHASE OBASEKI, by the University of Ibadan and the Certificate is not false or forged but is

a genuine and authentic degree Certificate of the University of Ibadan, though I observe that the one on the claim of Plaintiffs was not completely photocopied due to the largeness of the Certificate being more than A4 paper size.
9. That I know as a fact and from the available records at my disposal that the Degree Certificate issued to the 1st Defendant, GODWIN NOGHEGHASE OBASEKI, by the University of Ibadan is dated 6th of July, 1979 and duly signed by the then Vice Chancellor and the Registrar of the University, namely, Professor Tekena N. Tamuno and Mr. S. J. Okudu both of blessed memory.
10. That I know as a fact and from the available records at my disposal that the 1st Defendant, GODWIN NOGHEGHASE OBASEKI, met the minimum entry requirements of the University of Ibadan in 1976 to read Classics later renamed Classical Studies by the combination of his High School Certificate (HSC) and his West African Examination Council O/Level Certificate irrespective of the absence of a credit in English Language.
The depositions of DW2 in paragraphs 7, 8, 9 and 10 of his witness statement on oath and the original copies of all relevant educational

Certificates of the 1st Defendant have put to rest any argument as to whether the 1st Defendant was properly and validly admitted into the University of Ibadan to read Bachelor of Arts Degree in Classical Studies and whether his said Certificate were forged.
This case could be likened to a scenario where a stranger claims that a child has no father while the father of the child is saying that the child in question is his biological son. The story to be accepted is left to the imagination of a reasonable person. The Plaintiffs contention in this suit is that the 1st Defendant has forged his Degree Certificate while a Deputy Registrar of the same University is saying that the Degree Certificate in question is not forged and same was issued to the 1st Defendant by the University of Ibadan in 1979.
Having thoroughly analysed and reviewed the evidence put forward by the contending parties in this suit, it is the conclusion of this Court that the Plaintiffs have failed to prove their allegation that the 1st Defendant has forged his O/Level Certificate, HSC WAEC Certificate, Leaving School Certificate and in particular his Degree Certificate issued by the

University of Ibadan in 1979.
In consequence of the above finding, the Plaintiffs case has failed and it is accordingly dismissed.
No order as to cost.”

The Appellants were dissatisfied with decision and have by their Notice of Appeal dated 19th January, 2021 and filed on 20th January, 2021 appealed to this Court on thirteen (13) grounds which without their particulars are as follows:
“2. PART OF DECISION OF THE LOWER COURT COMPLAINED OF:
The Whole Decision
3. GROUND OF APPEAL:
GROUND ONE
The trial judge erred in law when he held as follows:
“The case put forward by the Plaintiffs in a nutshell is that the 1st Defendant submitted forged Certificate of “O” level purportedly issued by WAEC and forged Degree Certificate issued by the University of Ibadan. As I stated earlier, the 1st and 2nd Defendants have vehemently denied the Plaintiffs’ allegations. See paragraphs 3, 3(a), 5, 5(a), 5(b)(i), 5(c) – 5(f), 7, 8, 9, 9(a), 11(c), 15 – 17(i), (ii) and (iii) (iv) and (v) of the 1st Defendant’s statement of Defence and paragraphs 4, 5, 5(a), 6, 7, 8, 9, 29, 31, 3(i) (ii) and (iii) of the 2nd defendant’s

Statement of Defence in an attempt to prove the allegations in their statement of claim, the Plaintiffs called six witnesses and tendered exhibits. However, none of the witnesses was able to prove that the Certificate was forged.”
GROUND 2
The learned trial judge erred in law when he failed to consider and decide the issue raised by the appellants to the effect that the 1st respondent submitted a false degree certificate to INEC within the meaning of Section 31(5) and (6) of the Electoral Act, 2010 (as amended), for the 19th September 2020, Governorship in Edo State.
GROUND 3
The Learned Trial Judge erred in law when he failed to consider and decide the issue raised by the appellants to the effect that the 1st respondent submitted false WAEC Higher School Certificate and false Testimonial of the Institute of Continuing Education, Benin City, to the 3rd Respondent (INEC) within the meaning of Section 31(5) & (6) of the Electoral Act, 2010 (as amended) for the September, 2020 Governorship election in Edo State.
GROUND 4
The Learned Trial Judge erred in law when he held as follows:

“What played out in this case is that the Plaintiffs only relied on the photocopy of the 1st Defendant’s certificates submitted to the 3rd Defendant via exhibit PL2 (that is Form EC9). The apparent discrepancies were satisfactorily explained in the course of taking evidence in this Suit.”
GROUND 5
The Learned Trial Judge erred in law in holding as follows:
“In an attempt to prove the allegation in their Statement of Claim the Plaintiffs called six Witnesses and tendered exhibits. However, none of the witnesses was able to prove that the certificates were forged. Interestingly, all the Plaintiffs witnesses admitted under cross-examination that none of them had been to the University of Ibadan to verify the authenticity of the 1st Defendant’s Degree Certificate. One would have expected the Plaintiffs or any of their witnesses to endeavour to check or inquire with the University authorities about the authenticity of the Degree Certificate issued to the 1st Defendant.”
GROUND 6
The Learned Trial Judge erred in law in holding as follows:
“In the instant case, no iota of evidence talkless of proof beyond reasonable doubt as

required by law was brought by the Plaintiffs to substantiate and prove allegation of forgery against the 1st Defendant. A situation where the Plaintiffs have not bothered to inquire from the University of Ibadan whether the Degree Certificate in the Possession of the 1st Defendant was validly issued to him or not, is in my humble view a complete failure to discharge the burden of proving the allegation of forgery against the 1st Defendant.”
GROUND 7
The Learned Trial Judge erred in law in holding as follows:
“On his part, the 1st Defendant has called DW1 who tendered all the original copies of the 1st Defendant’s West African Examinations Council’s School Certificate, WAEC Higher School Certificate, Primary School Leaving School Certificate and original copy of the 1st Defendant’s Bachelors of Art Degree Certificate issued to him by the University of Ibadan in July 6, 1979 and signed by the Vice-Chancellor of the University, the Registrar of the University and the Logo of the University of Ibadan. These documents are what is known in law as direct evidence.
Now, what is the efficacy in a law of direct evidence? The answer can

be found in the Supreme Court case of ANEM V. STATE (supra), it is clear that a direct evidence will put to rest any argument as to the state of things or affairs that is sought to be established or to disprove.”
GROUND 8
The Learned Trial Judge erred in law in holding as follows:
“Having thoroughly analyzed and reviewed the evidence put forward by the contending parties in this Suit, it is the conclusion of this Court that the Plaintiffs have failed to prove their allegations that the 1st Defendant has forged his O/Level Certificate, HSC WAEC Certificate, Leaving School and particularly his Degree Certificate issued by the University of Ibadan 1979.”
GROUND 9
The Learned Trial Judge erred in law when he held as follows:
“Another fundamental flaw in the case of the Plaintiffs is that while they alleged forgery against the 1st Defendant, the evidence brought is completely at variance with the allegation. In law, evidence which is at variance with the averment in pleadings goes to no issue and should be disregarded.”
GROUND 10
The Learned Trial Judge erred in Law for failure to consider or make

pronouncement on the admissibility of Exhibits D4, D9, D12, D13, D15 and D15, respectively when same were objected to by the appellants’ Counsel during trial of the case.
GROUND 11
The Learned trial judge erred in law when he failed to consider the submission made by the appellants’ counsel that the witness statement on oath of DW1 and the Degree Certificate of the 1st Defendant tendered by him constitute hearsay evidence.
GROUND 12
The Learned Trial Judge erred in law when he failed to consider the submission made by the appellants’ counsel that the witness statement on oath of DW2 had no evidential value in that the same was hearsay.
GROUND 13
The judgment is against the weight of evidence.
4. RELIEFS SOUGHT FROM THE COURT OF APPEAL:
(i) AN ORDER allowing the Appellants’ appeal
(ii) AN ORDER setting aside the decision of the trial Court.
(iii) AN ORDER of the Court of Appeal invoking its jurisdiction under Section 15 of the Court of Appeal Act to grant the appellants judgment on their claims.
(iv) Such further or other order.”

The Appellants’ Brief of Argument was dated and

filed on the 11th February, 2021. The 1st Respondents’ Brief of Argument dated 26th February, 2021 was filed on 1st March, 2021 while the 2nd Respondent’s Brief of Argument dated 23rd day of February, 2021 was filed on 1st March, 2021.

The Appellant filed Reply Brief to 1st Respondent’s Brief of Arguments on 3rd March, 2021. It was dated same date. On the same date the Appellants filed Reply Brief to the 2nd Respondent’s Brief of Arguments.

The Learned Senior Counsel to the Appellants distilled five (5) issues for determination as follows:
i. Whether having regard to the materials on record, the lower Court was not wrong in failing to consider and hold that the 1st Respondent as a candidate for the 2020 Governorship election in Edo State submitted false documents to the 3rd respondent (INEC) within the meaning of Section 31 (5) and (6) of the Electoral Act, 2010 as amended. – Covers grounds 2, 3 and 4.
ii. Whether having regard to the materials on the record, the lower Court was not wrong in holding that the appellants failed to prove the allegation that the 1st respondent presented a forged University of Ibadan degree certificate to

the 3rd respondent. – Covers grounds 1, 5, 6, 7, 8 and 13.
iii. Whether on the materials before the Court, the learned trial judge was right when he held that the evidence led by the appellants through their witnesses was at variance with the allegation in the pleadings. – Covers ground 9.
iv. Whether the trial Court was not wrong in failing to determine the objection raised by the appellants against the admissibility of some documents tendered by the 1st respondent. – Covers ground 10.
v. Whether the trial Court was right in relying on the evidence of DW1 which was hearsay in making findings in favour of the 1st respondent – Covers grounds 11.”

The 1st Respondent’s Learned Senior Counsel formulated two issues for determination thus:
1) Whether from the pleading and evidence adduced before the learned trial judge he was in error when he held that the Appellants’ failed to prove their claims against the Respondents. GROUNDS 5, 6, 7, 8, 9 AND 13.
2) Whether the learned trial judge’s alleged failure to consider some issues in the case occasioned any miscarriage of justice to the Appellants. GROUNDS 1, 2, 3, 4, 10 AND 11.

On his part, the Learned Counsel to the 2nd Respondent R. O. ISENALUMHE Esq. adopted the issues formulated by the Appellants. The 3rd Respondent’s learned Counsel M. A. BAWA Esq. informed the Court that 3rd Respondent did not file any Brief of Argument.

The appeal was heard on 8th day of March, 2021 when the Learned Counsel who exchanged Briefs of Argument adopted their Briefs of Argument.

It is here relevant to mention that the 1st Respondent through his Learned Counsel OLUSEGUN JOLAAWO, SAN filed a MOTION ON NOTICE dated 26th February, 2021 on 1st March, 2021 seeking the following reliefs:
“1) AN ORDER striking out Grounds 1, 2, 3, 4, 10 and 11 of the Notice of Appeal and Issues (i), (iv) and (v) distilled therefrom in Appellants’ Brief of Argument as being incompetent.
AND SUCH FURTHER ORDER(S) as this Honourable Court may deem fit to make in the circumstances.”

The said MOTION ON NOTICE is predicated on six (6) grounds as follows:
1. The Federal High Court Abuja Coram A. R. Mohammed J. delivered judgment on Saturday the 9th of January 2021 dismissing the claims of the Appellants (as Plaintiffs) in Suit No

FHC/ABJ/CS/74/2020 on the ground that there was no iota of evidence in proof of the allegations contained in the Statement of Claim.
2. The Appellants being dissatisfied with the judgment of the trial Court filed a Notice of Appeal against the said judgment on the 20th January 2021 containing 13 grounds of appeal.
3. In Grounds 1, 2, 3, 4, 10 and 11 of the Notice of Appeal, the Appellants complained that the trial Court failed to consider and determine their case and further requested this Honourable Court in paragraph 7.6 of the Appellants’ Brief to exercise its powers under Section 16(sic) of the Court of Appeal Actto “consider and rule” on the issue raised (in respect of their Issue 4)
4. By the provision of Section 285(10) of the 1999 Constitution (as altered), the trial Court [and by extension this Court] has ceased to have jurisdiction to consider or entertain any issue not resolved within the 180 days-time limit immutably ordained by the Constitution.
5. In Grounds 1, 2, 3, 4, 10 and 11 of the Notice Of Appeal (from which issues (i) (iv) and (v) in the Brief of Argument were distilled) the Appellant complained that the issues

agitated therein were not considered or decided by the learned trial judge in his judgment thereby raising the specter that those matters were not determined within the constitutional timeline of 180 days thus robbing this Court of jurisdiction to entertain the Grounds of Appeal and the issues raised therefrom.
6. This Court is bereft of jurisdiction to consider and decide issue (i), (iv) and (v) in the Appellants’ Brief of Argument which were distilled from the incompetent Grounds 1, 2, 3, 4, 10 and 11 in the Notice of Appeal.”

The application was supported by eight (8) paragraphs Affidavit sworn to by one ABRAHAM OLAJIDE, a Litigation Officer in the law firm of Solicitors to the 1st Respondent.

The argument on the said Motion was incorporated into the 1st Respondent’s Brief of Argument filed on 1st March, 2021 paragraphs 3.00 to 3.21 thereof. The arguments canvassed are elaboration of the grounds of the application. The learned Silk to the 1st Respondent OLUSEGUN O. JALAAWO, ESQ who settled the 1st Respondent’s Brief submitted that grounds 1, 2, 3, 4, 4, 10 and 11 of the Appellants Notice of Appeal and Issues 1, 4 and 5 derived from the

said grounds of appeal are moribund because the time stipulated for the hearing and determination of a pre- election matter is 180 days and by effluxion of time that Court has lost jurisdiction to pronounce on any of those issues.

The learned Senior Counsel to the 1st Respondent is also of the view that since the lower Court no longer has jurisdiction in this matter this Court is also by extension and by virtue of Section 285 (10) of the Constitution of the Federal Republic of Nigeria 1999 as amended bereft of jurisdiction to entertain any issue on Grounds 1, 2, 3, 4, 10 and 11 of the Notice of Appeal. He therefore opined that the invitation extended to this Court by the Appellants’ learned Counsel that this Court should invoke Section 15 of the Court of Appeal Act to decide the issues raised from the said grounds of appeal is foreclosed.

That the said issues as raised from the said grounds are no longer live issues and as such this Court cannot decide them. He relied on the following cases among others viz: –
1. SC/CV/27/2020: HON. N. G. DANTIYE V APC & ORS delivered on 20/10/2020 per AMINA AUGIE, J.S.C. PAGE 15;

EHUWA V ONDO STATE INDEPENDENT ELECTORAL COMMISSION & ORS (2006) LPELR – 1056 (SC) PER OGBUAGU, J.S.C.;
3. ILIYASU V IBRAHIM & ORS (2019) LPELR – 48218 (CA) PER ABUNDAGA, J.C.A.

He urged the Court to uphold the prayers of the Appellant and dismiss the appeal because if those grounds are knocked off, the remaining grounds of appeal and issues therefrom cannot sustain the appeal.

In response to the 1st Respondent’s learned Senior Counsel’s submissions, CHIEF AKIN OLUJINMI for the Appellants believes the 1st Respondent’s application is misconceived and ought to be dismissed.

He submitted that under the Court of Appeal Rules 2016, Order 7 Rule 3 thereof a ground of appeal can only be struck out if it is vague or general in terms or where it discloses no reasonable ground of appeal. He stated that expiry of 180 days for trial of pre-election cases by a trial Court is not one of the grounds for which an appeal or its grounds may be struck out. He submitted that reliance placed on Section 285 (10) of 1999 Constitution is unavailing to the 1st Respondent. He stated that the Supreme Court has pronounced on the jurisdiction of this Court as

encapsulated in Section 15 of Court of Appeal Act in many authoritative decisions viz:
1. JADESIMI VS OKOTIE-EBOH (1986) 1 NWLR (PART 16) 264 AT 274 D – H;
2. INAKOJU V ADELEKE (2007) 4 NWLR (PART D1025) 423 – 616 G and 691.

That the general powers of this Court has not been whittled down or diminished in any way by pre-election and election cases relying on the cases of UGBA V SUSWAM (2013) 4 NWLR (PT. 1345) 427 AT 476 and SAKI V APC (2020) 1 NWLR (PT. 1706) 515. Learned Senior Counsel to the Appellants submitted that the case of DANTIYE V APC SUPRA has not decided anything different. That none of the impugned grounds requires any further evidence or anything extraordinary. He urged the Court to dismiss the application of 1st Respondent seeking to have the said grounds of appeal and issues emanating therefrom struck out.

I have reproduced the grounds of appeal as contained in the Appellants NOTICE OF APPEAL without their particulars earlier in the course of this judgment. I have read the Motion Papers and the arguments of learned Senior Counsel to the Appellants and 1st Respondent.
I have also keenly gone through the cases

relied upon by them and interpretation given to Section 285(10) of the Constitution of the Federal Republic of Nigeria 1999 as amended.
I am of the solemn view that Section 285(10) of the Constitution of the Federal Republic of Nigeria 1999 as amended does not prohibit an aggrieved party in pre-election matters from appealing the judgment of a High Court in pre-election matter on errors or omission committed by the trial Court in its judgment against the aggrieved party.
As a matter of fact, Section 285(11) of the Constitution of the Federal Republic of Nigeria 1999 as amended donated right of appeal to an aggrieved party over a decision or judgment of trial Court in or on pre-election matter. The said subsection 11 of Section 285 of the Constitution of Federal Republic of Nigeria 1999 as amended provides: –
“285(11) An appeal from a decision in a pre-election matter shall be filed within 14 days from the date of delivery of the judgment appealed against.”
The case of DANTIYE V APC SUPRA is not to the effect that an aggrieved party cannot appeal against decision of a High Court in or on pre-election matters.

A party can appeal but where the reliefs he seeks before the Appellate Court is caught by the provisions of the Constitution then this Court will pronounce so. Whether the Appellants’ appeal will or will not succeed on the grounds it is predicated and issues raised will be determined by this Court within the limits of the Appellate jurisdiction conferred on this Court by the Constitution and the Statute as applicable to it.
I am of the view that the impugned grounds of appeal are not invalid. The application of the 1st Respondent is refused.

NOW TO THE MERIT OF THE APPEAL
I have set out the questions distilled for determination by the Appellants and 1st and 2nd Respondents. The appeal can be determined on the five issues formulated by the Appellants learned Senior Counsel. The said issues will be taken together but in the sequence in which they were treated by the Appellants’ learned Senior Counsel.

CHIEF AKIN OLUJINMI, SAN for the Appellants intimated the Court that the Appellants case is predicated on two principal grounds namely: –
1. Submission of false documents by 1st Respondent to 3rd Respondent (INEC) for purposes of the September,

20, 2020 Governorship Election in Edo State in breach of Section 31(5) and (6) of the Electoral Act, 2010 as amended.
2. Presentation of a forged University Degree Certificate by 1st Respondent to the 3rd Respondent (INEC) contrary to Section 182(1) (j) of the 1999 Constitution as amended.

The learned Senior Counsel stated that the learned trial Judge misapprehended the Appellants case and failed to give consideration to the case actually made by the Appellants. He made reference to Section 31(5) and (6) of the Electoral Act 2010 as amended to submit that if a case made against a Candidate is established, subsection 6 of same Section 31 of the Electoral Act empowers the Court to disqualify the Candidate from contesting the election. He opined that the simple question for a Court to determine is whether the document submitted by the Candidate is false and where it is found to be false order would be made under Section 31(6) to disqualify the Candidate from contesting the election. The learned Senior Counsel submitted that Section 31(5) of the said Electoral Act as worded does not permit any explanation from the Candidate as to why he

submitted a false document to INEC. According to the learned Silk “once the evidence reveals that the document he submitted is false in any sense, the case is made out for the Court to so hold.”

The learned Senior Counsel then listed out the documents submitted to 3rd Respondent by the 1st Respondent with 1st Respondent’s FORM EC9 on 29th June, 2020 all of which the Appellants described as follows: –
i. the purported University of Ibadan degree Certificate bearing the name of the 1st Respondent.
ii. the purported WAEC Higher School Certificate dated June, 1976.
iii. the testimonial purportedly issued by the Institute of Continuing Education, Benin City in 1975.

The learned Senior Counsel stated that the Appellants called PW2 who tendered FORM EC9 submitted by the Appellant and the documents attached as Exhibit PL2 and that the purported University of Ibadan Degree Certificate only contained signature of the Vice Chancellor but did not have the Registrar’s signature as well as date of issue. That it was on the basis of this the 1st Respondent was disqualified by 1st Appellant from contesting the Governorship election on its

platform. That the 1st Respondent then defected to the 2nd Respondent and eventually contested the election. He relied on the evidence of PW3 and PW6 who also attended University of Ibadan and tendered their own Degree Certificates as Exhibit PL4 and PL16 respectively obtained the same July, 1979 as the 1st Respondent. That the Degree Certificate of 1st Respondent did not meet the Standard Operating Procedure of University of Ibadan tendered as Exhibit PL13. Learned Silk also relied on evidence of PW4 who he said testified as a Forensic Document Examiner whose Report was tendered as Exhibit PL6. That his evidence was that the Degree Certificate tendered as Exhibits PL4 and PL16 obtained from University of Ibadan showed the falsity of Degree Certificate of 1st Respondent obtained from same University of Ibadan.

According to learned Silk, DW1, DW2 and DW3 gave evidence which corroborated evidence led by the Appellants to the effect that Degree Certificate submitted by 1st Respondent to the 3rd Respondent was false.

Learned Silk submitted that what is not true is false and that the evidence of the witnesses that a photocopy which did not capture all

the content of the original documents photocopied is not a true copy of the original document and it can only mean one thing i.e., that is a false document and cannot be otherwise. Reliance was placed on Black’s Law Dictionary 6th Edition and Webster’s II New Riverside University Dictionary. Learned Senior Counsel submitted that the offer of explanation as to why the false document was submitted to INEC tantamount to admission that the 1st Respondent submitted the false document. He also stated that the 1st Respondent was even inconsistent in the explanation offered to explain the false document submitted when he pleaded in paragraph 3 of his statement of defence that it was in the process of photocopying the original document that he inadvertently made the copy that did not contain the Registrar’s signature and date of issue due to the large volume of documents photocopied and due to the large size of the Degree Certificate whereas the DW1 in paragraph 7 of his witness statement page 299 of the record gave different reason under cross examination which according to the learned Senior Counsel to the Appellants completely changed the story. According to him

DW1’s reason for the omission on the photocopy stated it was due to “mechanical fault without intent”. Learned Senior Counsel submitted that a party must be consistent in the presentation of his case. That the essence of the inconsistencies in 1st Respondent’s case will make the Court to hold that the party has not established the point he set out to make in his pleading. He relied on the cases of:
1. ALHASSAN & ANOR V ISHAKU & ORS (2016) 10 NWLR (PT. 1520) 230 AT 261 B- C;
2. KUBOR V DICKSON (2013) 4 NWLR (PT. 1345) 534 AT 589.

He submitted that the admission of DW2 under cross examination that the photocopy of the original Certificate did not show the signature of the Registrar and date of issue constitute admissions against interest. He relied on the cases of ONISAODU V ELEWUJU (2006) 13 NWLR (PT. 998) 517 AT 529 G – H and ONOVO VS MBA (2014) 14 NWLR (PT. 1427) 391 AT 24A.

That no oral evidence can vary the contents of a document as 1st Respondent’s witnesses have tried to do. He relied on the case of AGBAKOBA VS INEC (2008) 18 NWLR (PT. 1119) 489 AT 539.

It is also the submission of the Appellant’s Senior

Counsel that a Court must give ample consideration to and determine all issues placed before it relying on the cases of:
1. OKONJI V NJOKANMA (1999) 14 NWLR (PT. 638) 250 AT 270 F- G;
2. OJOGBUE & ORS V NNUBIA & ORS (1972) ALL NLR (PT. 2) 226;
3. OKONJI V NJOKANMA (1991) NWLR (PART 202) 137 AT 145, 146.

He urged this Court to find in Appellants’ favour and set aside the judgment of lower Court.

On the second and third documents submitted by 1st Respondent to INEC that is WAEC Higher School Certificate dated June 1976 and Testimonial issued to him by the Institute of Continuing Education Benin City in 1975 he stated that the said Higher School Certificate attached to Exhibit PL2 shows that the 1st Respondent sat for the examination in Religious Studies, Government and Economics but that the Institute of Continuing Education Benin City which presented 1st Respondent for the examination certified that “he offered History, English Literature, Economics and General Paper for Higher School Certificate held in May/June 1975.”

Learned Silk relied on the evidence of PW5 as establishing the pleaded case of the Appellants. To

Learned Silk, the 1st Respondent could not have been awarded a Certificate for the subjects he was not presented for by his School. He stated that the only Defence put forward by the 1st Respondent is that the Institute of Continuing Education only showed the subjects he studied in the school during classes of 1975. That the pleading of 1st Respondent was contrary to his testimonial which says emphatically that the 1st Respondent “offered History, English Literature, Economics and General Paper for the High School Certificate in May/June 1975.”

That another anomaly is that apart from WAEC Higher School Certificate showing it was for June 1976 it was also shown that the Institute certification was for examination of May/June 1975. He submitted that these are matters peculiarly within the 1st Respondent’s knowledge but he failed to explain why he was holding a Certificate for a year different from the year of examination. He relied on Section 138 of the Evidence Act. That in all the 1st Respondent has submitted false documents to INEC which should lead to his disqualification vide Section 31(6) of Electoral Act 2010. He also relied on the case of

MODIBO V USMAN (2020) 3 NWLR (PART 1712) 470 AT 509k – 510 A – H which learned Silk said has settled the law as canvassed by the Appellants. He urged this Court to resolve issue 1 in Appellants favour.

On issue 2 as to whether the holding by the learned trial Judge that Appellants failed to prove their allegation that the 1st Respondent presented a forged University Degree Certificate to 3rd Respondent, the learned Silk said the trial Court only considered the issue of whether the degree Certificate in possession of the 1st Respondent and his other Certificates were forged which he said was not the case made against the 1st Respondent by the Appellants in that, that is not the real issue raised for consideration of the Court by the Appellants. Concerning presentation of forged degree Certificate to the 3rd Respondent by the 1st Respondent, Learned Silk adopted the arguments under issue 1. He in addition relied on paragraphs 12, 14(iii), (iv) and 28(i) and (ii) of Appellant’s Statement of Claim and response of the 1st Respondent to their aforesaid paragraphs.

The Learned Silk relied on the evidence the Appellants led through PW1, PW2, PW3, PW4, PW5 and PW6

together with Exhibits PL2, PL4 and PL6. He reiterated that Evidence of DW2 and DW3 supported the evidence of Appellant’s Witness. He again relied on evidence of PW4 who he said showed that the Degree Certificate attached to FORM EC9 submitted to NEC was forged. That the 1st Respondent failed to call any expert evidence to controvert the evidence given by PW4 on the degree certificate by the 1st Respondent to INEC.

He submitted that where expert evidence is led and the opponent fails to call another forensic expert to controvert what Appellant’s forensic expert said about 1st Respondent’s Certificates, then it constitutes admission of PW4’s evidence by the 1st Respondent. He relied on the cases of:
1. OBANOR V. OBANOR (1976) LPELR – 2150 (SC)

SEISMOGRAPH SERVICES LIMITED V. ONOKPASA (1972) 1 ALL NLR 343
3. OTTI V. OTTI (1992) 7 NWLR (PART 252) 187 at 211 H.

The Learned Senior Counsel submitted that notwithstanding that no such evidence was called by the 1st Respondent the trial Court found that the Appellants did not prove their allegations against the 1st Respondent. Thus, the Learned Senior Counsel described as erroneous

findings on the part of lower Court. He submitted there was no proper evaluation of evidence led before the trial Judge and that the learned trial Judge completely misconceived the Appellants’ case that the 1st Respondent presented a forged certificate to INEC and therefore failed to decide same and that it led to miscarriage of justice. He called on this Court to set aside the judgment of the lower Court. He relied on the following cases.
1. GARBA V. MOHAMMED & ORS (2016) LPELR – 40612 (SC) 56 – 57 D- A.
2. MOGHALU V. UDE (2001) 1 NWLR (PART 693) 1 at 13
3. OJOGBUE & ORS V. NNUBIA & ORS (1972) ALL NLR (PART 2) 226.

Learned Silk to the Appellants submitted that the lower Court misdirected itself on pages 1462 – 1463 of the record when it held that none of the witnesses of Appellants had been to the University of Ibadan to verify the authenticity of the 1st Respondent’s Degree but rather the Appellant’s case was about the degree certificate presented by the 1st Respondent to INEC.

According to the Learned Silk, there was therefore no need for the Appellants to embark on any journey to University of Ibadan to verify

authenticity of any degree certificate that may have been issued to the 1st Respondent. And that even if they have to do, that evidence of DW2 shows that Exhibit PL2 which is a certified true copy of 1st Respondent’s degree certificate did not have Registrar’s signature and date of issue. The Appellants saw the evidence as admission against the interest of 1st Respondent. He relied on the cases of MODIBO v. USMAN (2020) 3 NWLR (PART 1712) 470 at 509 H – 510 A – H and PDP v. DEGI – EREMIENYO supra to submit that it is not necessary to prove the allegations against the 1st Respondent beyond reasonable doubt.

Issue 5 was next treated by the Learned Silk to the Appellants who argued that the evidence of DW1 amounts to hearsay in law but that the lower Court ignored the issue and proceeded to rely on DW1’s evidence to make findings in favour of the 1st Respondent. Attention was drawn to DW1’s witness statement on pages 298 – 306 of the record and pages 1387 – 1389 under cross examination. That the DW1 not being the maker of FORM EC9, he could not give evidence on it and that all the pieces of evidence given by DW1 are nothing but documentary

hearsay. Reliance was placed on the cases of:
1. ADEGBOLA V. NDLEA (2019) LPELR – 47217 (CA)
2. EMMAYE V. PEOPLE OF LAGOS STATE (2016) LPELR – 41493 CA and
3. GUNDIRI V. NYAKO (2014) 2 NWLR (PART 1391) 211 at 243 E – H.

Learned Silk urged the Court to resolve the issue in Appellants favour.

Issue 4 complains that the Lower Court failed to consider and decide the objections raised by the Appellants against the documents admitted as Exhibits D4, D8, 59, B10, D11, D12, D13, D14 and D15. That the gravamen of the objections against the said documents is that the said documents were neither frontloaded by the 1st Respondent as required by the rules of Court nor were they pleaded. He relied on Order 13 Rule 35(b) of the Federal High Court (Civil Procedure) Rules, 2019. That the failure of lower Court to consider and pronounce on the evidence led to perverse judgment. He relied on the case of MV COURAGEOUS ACE & ORS VS. NIGERDOCK (NIG) PLC (2016) LPELR – 40223 page 18 B – D. Learned Senior Counsel urged this Court to utilize Section 15 of Court of Appeal Act and rule in Appellant’s favour.

On issue 3 as to whether the learned

trial Judge was right in holding that the evidence led through Appellants witnesses was at variance with the allegation in the pleadings, the learned Senior Counsel stated that the trial Court failed to point out the evidence that was at variance with the pleadings thus leaving the matter in conjecture and speculation. That it is not correct to say the Appellants led evidence that is at variance with their pleadings and that the error on the part of lower Court arose from the failure of lower Court to appreciate the case of the appellants.

In conclusion, he urged the Court to allow the appeal and grant the claims endorsed on Appellants’ statement of claim.

In response to the issues raised for determination and submissions of Appellants’ learned Senior Counsel, the Learned Senior Counsel to the 1st Respondent stated that the Appellants’ submission is a misconceived attempt to impugn the well-reasoned judgment of lower Court on pages 1462 and 1467 – 1468 Vol. 2 of the record. That they failed to say they have abandoned the case set up in their pleadings but now resorted to making distinction without a difference in this Court between false document

and forged document. That they also hinged their case on distinction between original certificate and a photocopy made from the original Certificate which was submitted to 3rd Respondent INEC.

Reference was made to the evidence led through PW1 – PW4 and PW5 and Reliefs 1 and 2 which are based on Section 182(1)(j) of the Constitution and Section 31(5) of the Electoral Act 2010 as amended. That Appellants’ pleadings show lumping together of false/forged Certificates under same sets of particulars.

The learned Senior Counsel to the 1st Respondent submitted that pursuant to Section 31(5) of the Electoral Act 2010 where there is no reasonable ground there can be no cause of action and it is submitted that this reasonable ground requirement in relation to educational qualifications entails the barest minimum inquiries/information from the issuing authorities concerning the status of the qualification challenged. That resting their case on Section 182(1)(j) of 1999 Constitution, the contention of the Appellants is that 1st Respondent did not possess a University Degree or a WAEC, or Advanced Level Certificate or Testimonial from the Institute of

Continuing Education. That there is no doubt that the allegation is that of forgery. That in any event there is no difference between false document and a forged document. He relied on the cases of: –
1. ABUBAKAR V INEC (2020) 12 NWLR (PT. 1737) AT 110, 111, 129 and 130.
2. JONATHAN VS FRN (2018) LPELR – 46715 CA.
3. MODIBBO V USMAN (2020) 3 NWLR (PT. 1712) 470 AT 509 per EKO, J.S.C.
4. BANK OF AMERICA (INTERNATIONAL TRUST AND SAVINGS ASSOCIATION) VS NIGERIAN TRAVEL AGENCIES LTD (1967) LPELR – 25352 (SC).

Learned Senior Counsel therefore urged this Court to hold that the lower Court did not misapprehend the case of Appellants and that the findings of the lower Court did not occasion a miscarriage of justice.

Learned Silk submitted that judicial authorities established that Appellants contention that 1st Respondent submitted false information or false document sufficient to disqualify the 1st Respondent must relate to the Constitutional qualification requirements for election and that since the Appellants are not challenging the authenticity of the educational certificates issued to or in possession of the 1st Respondent no

case of constitutional infraction of the qualification or disqualification requirements was raised or is being pursued by the Appellants. The Appellants’ appeal is rendered wholly academic and complete abuse of judicial process. He relied on the cases of MAIHAJA V GAIDAM (2017) LPELR – 42474 (SC) PAGES 52 – 55 per KEKERE-EKUN, J.S.C. and AGI V PDP & ORS (2016) LPELR – 42578 SC PAGES 87 – 91 F – A.

The learned Silk to the 1st Respondent submitted that the Appellants did not plead that the alleged falsehood was to aid the qualification of the 1st Respondent bearing in mind that they did not challenge or question the 1st Respondent’s O’ Level WAEC Certificate or his Master of Business Administration Degree from Pace University equally attached to INEC FORM EC9, EXH PL2. That the submission of Appellants in paragraphs 4.5 of their Brief of Argument is an admission that the falsehood they are alleging did not relate to the Constitutional requirements to contest election.

He made reference to the sworn testimony of PW1 and PW5 on pages 434 – 435 and 436 of the record to submit that the burden assumed by the Appellants was to prove that the

Certificates submitted by the 1st Respondent to INEC were not issued by the University of Ibadan, West African Examinations Council and the Institute of Continuing Education Benin by calling this institution to testify and to disown the Certificates. That the Appellants failed to do so. He reiterated that the evidence of the PW1 and PW5 is contrary to the pleaded case of the Appellants that the 1st Respondent did not obtain genuine Certificates from the Institutions he attended. He referred to evidence of PW1, PW3, PW4 and PW5 under cross examination at page 1317, 1319, 1320, 1346 – 1438, 1349, 1361 – 1362, 1368 – 1369, 1370, 1374 – 1376 of Vol. 2 of the record to submit that from all the pieces of evidence elicited under cross examination of Appellants’ witnesses, it is clear that they contradicted the case pleaded by the Appellants namely, that the 1st Respondents educational Certificates were false or forged, That in the absence of evidence from the educational institutions disclaiming the Certificates presented by 1st Respondent to INEC, the Appellants claims remained in the realm of mere assertion without proof. He relied on the cases of: –

ZACCALA V EDOSA & ANOR (2017) LPELR – 48034 SC P. 38 B – D.
2. AUDU V INEC (NO.2) (2010) 13 NWLR (PT. 1212) 456.
3. MOHAMMED VS WAMMAKO SUPRA.
4. MAIHAJA V GAIDAM SUPRA P. 52 – 55 E – A.

That the 1st Respondent tendered his WAEC CLEVEL and A’LEVEL as Exhibits D1 & D2 on page 1380 Vol. 2 of the record without objection from Appellants and they constituted the best evidence of the Certificates of 1st Respondents relying on the case GBOMS & ANOR VS OGUNDU & ORS (2019) LPELR – 49026 CA.

The learned Senior Counsel to the 1st Respondent also submitted that the Appellants witnesses who spoke on the Certificates of 1st Respondent were not the makers of the documents and their evidence is not admissible. He submitted that the Appellants failed to prove their case beyond reasonable doubt that the Certificates presented by 1st Respondent to 3rd Respondent were forged/false documents. The learned Senior Counsel to the 1st Respondent stated that the Appellants’ witnesses all relied on photocopies of the Certificates to come to their perverse conclusion that the Certificates were false or forged without producing the originals

of the 1st Respondent’s Certificates and that PW4, the so-called expert, according to learned Counsel to the 1st Respondent, did not rely on original certificate but on copy of photocopy of the 1st Respondent’s degree certificate attached to INEC FORM EC9 for his analysis which learned Senior Counsel to the 1st Respondent described as dubious. That forgery or forged Certificates cannot be proved without the originals being produced for the Court to examine. He relied on the cases of;
1. AGI VS PDP (2016) LPELR – 42578 (SC) PAGES 87 – 91 and
2. MOHAMMED V WAMMAKO (2018) ALL FWLR (PT. 937) 1608 AT 1630 – 1631 H – C per KEKERE-EKUN, J.S.C.

That this Court cannot in the circumstance interfere with the decision of the lower Court. He relied on the case of CPC VS INEC & ORS (2011) LPELR 8257 (SC) PAGES 92 – 93. That the best evidence to prove the Appellants’ case must be the evidence of the makers of Certificates complained about. He relied on the cases of: –
1. ABUBAKAR V INEC SUPRA PAGE 111;
2. OSIGWELEM VS INEC (2011) 9 NWLR (PT. 1253) 425 AT 451 per OWOADE, J.C.A.;
3. A.G. OF ANAMBRA STATE V A.G. OF THE FEDERATION (2005)

9 NWLR (PT. 931) 572 AT 638 C -E;
4. ABUBAKAR V INEC (2020) 12 NWLR (PART 1737) 37 AT 129 – 130 per I. T. MUHAMMED, CJN.

He submitted that all arguments canvassed on all the issues raised by the Appellants are untenable and have no support in law. He urged the Court to dismiss the appeal.

In his own submission the Learned Counsel to the 2nd Respondent is on the same page with the 1st Respondent’s Learned Senior Counsel in his submissions against the issues formulated by the Appellants.

On the failure of the lower Court to consider and hold that 1st Respondent submitted false documents to 3rd Respondent within the meaning of Section 31 (5) and (6) of Electoral Act, the Learned Counsel to 2nd Respondent relied on the case ofDANTIYE V. APC supra to submit that since it was 180 days, the lower Court has to decide the issue had lapsed this Court and also has no jurisdiction to delve into the issue.

In the alternative, he submitted that the lower Court was right because submissions of Appellants are contrary to the case they made at lower Court and their reliefs 3 and 4 bordered on Section 182 (1) (j) of 1999 Constitution and not on Section 31 (5)

and (6) of Electoral Act. That the Appellants case deals with presentation of forged certificate which the lower Court considered on pages 1462 – 1463 of the record. That a party cannot deviate from his case as fought at the lower Court in the Appellate Court. He relied on the case of AGI v. PDP supra (2016) LPELR – 42578 (SC).

He submitted that even if it could be said that the case of Appellants was brought under Section 31 (5) and (6) of Electoral Act, it must be proved beyond reasonable doubt on the authority ofAGI v. PDP supra. The same position of the law was reiterated under issue 2. He relied on the cases of MAIHAJA V. GAIDAM (2017) ALL FWLR (PT. 917) 1628 at 1664 A and the case of MOHAMMED V. WAMMAKO (2018) ALL FWLR (PART 937) 1608 at 1630-31 per KEKERE-EKUN J.S.C. He went into extensive review of the Exhibits tendered by the parties and the findings of the Court to submit that Appellants have not proved their case beyond reasonable doubt.

On issue 3 as to whether the trial Judge was right in holding that evidence led by Appellants was at variance with the pleadings, 2nd Respondent Learned Counsel submitted that the lower Court was right.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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On whether it was not wrong for the lower Court to have failed to pronounce or admissibility of Exhibits D4 – D15 he submitted it is no longer a live issue because the 180 days allowed by the Constitution has lapsed. His alternative submission is that the said exhibits were properly admitted because they were pleaded relying on the case of IYAGBA V. SEKIBO (2010) ALL FWLR (PART 518) 949 at 962 -3. That the documents were also tendered by subpoenaed witness.

On whether the trial Court was right in relying on evidence of DW1, Learned Counsel submitted that it is no longer a live issue but he submitted in the alternative that the evidence of DW1 is not hearsay relying on paragraphs 1, 2 and 3 of the Witness Statement on oath on page 298 of DW1 of the record. In the end he urged the Court to dismiss the appeal and uphold the judgment of the Court below.

The Learned Counsel to the 3rd Respondent M. A. BAWA, ESQ did not file Brief of Argument on behalf of 3rd Respondent.

In Appellant’s Reply Brief of Argument, the Learned Silk to the Appellants stated that the 1st Respondent’s Learned Senior Counsel did not respond to the submissions of

Appellants, on the inconsistent defence DW1 put forward for 1st Respondent and that means that the 1st Respondent conceded the points. He relied on the cases of NWANKWO & ORS VS. YARADUA & ORS (2010) 12 NWLR (PART 1209) 578 and GIUJBA V. FRN (2011) LPELR – 8971 CA.

On whether allegation of submission of false documents and presentation of forged Certificate must be proved beyond reasonable doubt, the Learned Senior Counsel to the Appellants stated the submission is misconceived. He relied on the cases of CHIDI IBE & ANOR V. IGBOKWE & ORS (2012) LPELR – 15351 CA and PDP V. DEGI EREMIENYO (2020) ALL FWLR (PART 1032) 526. He urged the Court to allow the appeal.

RESOLUTION OF ISSUES
A close perusal of issues 1 and 2 shows that they are interwoven or interrelated. The Appellants accused the lower Court of failing to hold that 1st Respondent submitted false documents to the 3rd Respondent contrary to Section 31 (5) and (6) of the Electoral Act 2010. It is also the complaint of the Appellants that the lower Court erred when it held that Appellants failed to prove the allegation that 1st Respondent presented a forged University

Degree Certificate to the 3rd Respondent.

the evidence and justifiably appraises the Facts, as it has been manifestly shown to have been done in the instant case it is not the business of the lower Court, an appellate Court, to substitute its own views for the views of the trial Court. The application of this trite principle by the lower Court cannot, certainly, be a basis for the reversal of the Court’s decision. See Mogaji v. Odofin (1978) 4 SC 91; Ojokolobo v. Alamu (1998) 9 NWLR (Pt. 565) 226 and Sha v. Kwan (2000) 5 SC 178 (2000) 8 NWLR (PT. 670) 685.
Secondly, in a civil matter such as this, the Court decides the case on the balance of probabilities or preponderance of evidence. The trial Court does this by first deciding which evidence it accepts from each of the parties, putting the accepted evidence adduced by the plaintiff on one side of the imaginary scale and that of the defendant on the other side of the scale weighing them together. The Court then decides which side’s evidence is heavier, not by the number of witnesses called by either party or on the basis of the one being oral and the other being documentary, but by the quality or probative value of the evidence be it oral and/or

documentary. See Fagbenro v. Arobadi (2006) 7 NWLR (PT. 978) 172.”
2. MRS ELIZABETH IRABOR ZACCALA VS MR KINGSLEY EDOSA & ANOR (2018) 6 NWLR (PART 1616) 528 AT 545 B – D per M. D. MUHAMMAD, J.S.C. who said:
“It is trite that the trial Court is vested with the primary duty of evaluating evidence and ascribing probative value to same. This primacy in the Court’s responsibility arises out of the fact of the advantage it has of seeing and, from observation of the witnesses, making impressions as they testified. Thus where the trial Court fails to bring the advantage to play in evaluating the evidence of the witnesses or where being documents, as in the instant case, the issue of credibility is not at play, the appellate Court is in as good a position as the trial Court to re- appraise the evidence and make correct inferences. See Atoyebi & Anor v. The Governor of Oyo State & Ors (1994) 5 NWLR (Pt. 344) 290, Dakat v. Dashe (1997) 12 NWLR (Pt. 531) 46 and Ajibulu v. Ajayi (2013) LPELR-21860 (SC): (2014) 2 NWLR (Pt. 1392) 483.”

It must however be borne in mind that it is not every slip or error by a lower Court that will lead to a

reversal of the lower Court’s decision unless the findings of the said Court are not supported by oral and documentary evidence on record. See AKINWATA OGBOGU MBANEFO VS. NWAKAIBE MOLOKWU & ORS (2014) 4 SCM 159 at 183 A – H per PETER ODILI, J.S.C.

The reliefs sought by the Appellants at the lower Court have been reproduced earlier in this judgment. It is germane to reproduce paragraphs 10 and 14 of the Appellants Statement of Claim wherein they averred as follows:
10. The Plaintiff avers that the information given by the 1st Defendant in INEC Form EC9 of 29th June, 2020 that he obtained a Degree Certificate from the University of Ibadan in 1979 is false. 1st Defendant did not obtain the said degree from the University of Ibadan in 1979.
PARTICULARS
(i) 1st Defendant did not meet the minimum entry requirement for gaining admission into the University of Ibadan as he only had three credits and two passes in his school certificate result purportedly issued to him by the West Africa Examination Council (WAEC). In addition the 1st Defendant did not fill or attach his primary School Education in terms of school attended and period of

attendance. It is unorthodox to have secondary and tertiary education without the basic primary education.
(ii) The 1st Defendant represented himself on the said Form EC9 as having gained admission into the University of Ibadan on the strength of the O/Level School Certificate issued to him by WAEC as he did not list any other qualification that entitled him to admission at the said University other than the said O/Level School Certificate.
(iii) The 1st Defendant had previously contested election to the same office of the Governor of Edo State in 2016 on the Platform of 1st Plaintiff and filled out INEC Form CF 001 which was sworn to on 11th July, 2016 at the High Court Registry, Benin City.
(iv) In the said Form CF001, 1st Defendant filled out column “C” for Educational Qualification and stated that he obtained a Bachelor of Arts Degree from the University of Ibadan in 1976.
(v) The 1st Defendant purportedly swore to an Affidavit at the Federal Capital Territory High Court Registry on 7th June, 2016 which Affidavit was headed “Affidavit of loss of original primary, Secondary, University and National Youth Service Corps Certificates,

wherein the 1st Defendant falsely claimed at paragraph 3;
That after I finished my Secondary School Education at Eghosa Anglican Grammar School, I Proceeded to the great University of Ibadan where I obtained my degree of Bachelor of Arts in Classical studies in 1976.
(vi) That the said Affidavit sworn to by the 1st Defendant had his photograph affixed to same and his regular signature appended to the document in proof of the truth of the content of the said document. Copies of 1st Defendant’s INEC Form CF001 sworn to on 11th July, 2016 and the Affidavit sworn to by the 1st Defendant on 7th June, 2016 shall be relied upon during trial. The Plaintiffs will also rely on the photocopy of the University of Ibadan Degree attached to the Affidavit and dated 6th July, 1979.
14. The Plaintiffs aver that the 1st Defendant presented false/forged University of Ibadan Degree Certificate to the 3rd Defendant on 26th June, 2020.
PARTICULARS OF FALSEHOOD/FORGERY
(i) Contrary to the date stated in INEC Form CF001 of 11th July, 2016 and the Affidavit sworn to by the 1st Defendant on 7/06/16, 1st Defendant attached a purported university of Ibadan

Degree Certificate dated July 6, 1979 and supposedly signed by the Vice-Chancellor and the Registrar of University. A copy of the Photocopy of the said University of Ibadan Degree Certificate would be relied upon during trial. He submitted the said Certificate to 3rd Defendant in 2016.
(ii) In 2020, the 1st Defendant completed INEC Form EC9 on 29th June, 2020 and attached a completely different University Certificate purportedly issued to him and different from the one he attached to the equivalent of the same Form in 2016 and which he presented to 3rd Defendant.
(iii) That the University of Ibadan Degree Certificate presented to 3rd Defendant along with the said INEC Form EC9 has no date on it to indicate when the Degree was issued, which is a practice that is unknown to the Academic community worldwide and renders the document without any probative value whatsoever.
(iv) That the University of Ibadan Degree attached to the said Form EC9 by 1st Defendant in 2020 purportedly has only the signature of the Vice-Chancellor of the University. The Plaintiff contends that the customary academic practice worldwide, including Nigeria is to have the

signature of the Vice-Chancellor and that of the Registrar on a University Degree Certificate together with an effective date of award. A copy of the said undated Degree Certificate with a sole Signatory is hereby pleaded.
(v) That the 1st Defendant’s O/Level WAEC Certificate with three credit passes in Religious Knowledge, History and Geography which the 1st Defendant attached to his INEC Form CF 001 in 2016 and Form EC9 in 2020 would not have qualified 1st Defendant to gain admission into a Nigerian University in 1976 with only three credits whether through Direct entry or otherwise. 1st Defendant did not obtain credit in English language. What was obtainable and is still so as the required minimum to gain admission to a Nigerian University is 5 (five) credits including English language.
(vi) 1st Defendant claimed vide a sworn Affidavit that he lost his original educational documents and therefore relied on photocopies of the lost documents in support of INEC Form CF 001 in 2016.
(vii) That on 17th August, 2016, 1st Defendant publicly announced that he had found the original Certificates he lost. Plaintiffs would rely on online publication

of pulse.ng and other online publications to this effect.
(viii) That the University Degree presented by 1st Defendant together with INEC Form EC9 to 3rd Defendant on 29th June 2020, is not the original of the Photocopy of the said Degree Certificate presented by 1st Defendant to 3rd Defendant on 11th July, 2016. The Certificate bears the purported signature of Professor Takena Tamuno.
(ix) That it is impossible to photocopy one document, which document would have sustained changes or alteration in form through the process of photocopy.
(x) That Professor Takena Tamuno was the Vice-Chancellor of University of Ibadan from December, 1975 to November, 1979. An online copy of the list of Vice-chancellors of the University of Ibadan from the University’s website would be relied upon “during trial. The said Professor Tamuno died in April, 2015 and could not have signed any Degree Certificate from his grave.
(xi) That every certificate from University of Ibadan must bear the Vice-Chancellor’s Signature, the Registrar’s Signature and the effective date of award. That this is the only condition for the certification of academic certificates in

university of Ibadan. Plaintiffs would rely on the standard operating procedure of the Examinations, Records and Administrative Data processing Division of the University of Ibadan obtained online from the University of Ibadan website during trial and any other extant Regulation/Law of the said University to this effect.
(xii) That the University of Ibadan Degree presented by the 1st Defendant to the 3rd Defendant is purportedly signed by only the Vice-chancellor and has no effective date of award contrary to the standard operating procedure of the said University.”

The basic thing the Appellants are contending is that 1st Respondent was not qualified to contest the Gubernatorial Election in Edo State in 2020 because he has no prerequisite Constitutional and Statutory qualification(s) to contest the election.

As can be seen from the reliefs sought from the lower Court which are no doubt declaratory and the facts pleaded and relied upon by the Appellants, the allegations contained in the said pleadings of the Appellants are laced with serious criminal allegations against the 1st Respondent and very virulent and direct allegations of

commission of sundry crimes were made against the 1st Respondent thereby placing onerous and bounden statutory obligations on the Appellants to prove all the allegations beyond reasonable doubt notwithstanding that this action is civil in nature. I call in aid the provisions of Section 135 (1) and (2) of the Evidence Act, 2011 which provide:
“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.”
See also:
1. EDWARD NKULEGU OKEREKE VS. NWEZE DAVID UMAHI & ORS (2016) 11 NWLR (PART 1524) 438 AT 489 B – G per KEKER- EKUN, J.S.C. who said:
“It has been settled by a long list of authorities of this Court that:
(1) Where a party seeks declaration reliefs, the burden is on him to establish his claim. He must succeed on the strength of his own case and not on the weakness of

the defence (if any), such reliefs will not be granted even on the admission of the defendant. See: Emenike v. PDP (2012) LPELR – SC 443/2011 p. 27, O – G; (2012) 12 WLR (Pt. 1315) 556; Dumez Ltd v. Nwakhoba (2008) 18 NWLR (Pt.119) 361 at 373 – 374; Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205, 297 – 298 F – A; Ucha v. Elechi (2012) 13 NWLR (Pt. 1317) 330.”
2. DR. SAMPSON UCHECHUKWU OGAH VS DR OKEZIE VICTOR IKPEAZU (2017) 17 NWLR (PART 1594) 299 AT 336 G – H TO 337A per M. D. MUHAMMED, J.S.C. who held: –
“I agree with learned senior counsel to both respondents that the appellant having asserted that 1st respondent’s tax declaration in Form CF001 is false has the burden of proving what he asserts. Addedly, the reliefs the appellant seeks being declaratory, he succeeds on the strength of his case alone and not on the weakness of the case of the respondents. The appellant has the burden of proof to establish the declaratory reliefs to the satisfaction of the Court. Being declaratory, the reliefs are not granted even on the admission of the respondents. See Dumez (Nig.) Ltd. v. Nwakhoba (2008) 18 NWLR (Pt. 1119) 361 and

Senator lyiola Omisore & Anor v. Ogbeni Rauf Adesoji Aregbesola & Ors (2015) LPELR; (2015) 15 NWLR (Pt. 1482) 205.
“To succeed in his claim, therefore, the appellant must, in the final analysis establish that the 1st respondent never paid the tax he declared in Form CF001, exhibit D, to have paid as evidenced by exhibits A, B and C the tax receipts and tax clearance certificate respectively.”
In the same case KEKERE-EKUN, J.S.C. had this to say on pages 348 H to 349 A:
“By the assertion that the documents submitted are false, there is an inherent allegation of dishonesty. It is implied that the documents submitted were concocted or that the originals were altered for the purpose of allowing the 1st respondent to contest the election under false pretences i.e., that he had complied fully with the requirements of the law and the PDP Guidelines. In other words, a crime is being imputed to the 1st respondent. In such circumstances, the appellant has the additional burden of proving his allegations beyond reasonable doubt. See Section 135(1) of the Evidence Act, 2011.”
In the same report on page 350 F – H thereof EKO, J.S.C. said: –

“I wish to merely add that either under Section 31 (5) and (6) of the Electoral Act, 2010 (as amended), or Section 182 (1)(j) of the 1999 Constitution, as altered, the burden of proof imposed by Sections 131 – 139 of the Evidence Act, 2011 is not displaced. Whoever asserts under Section 31 (5) of the Electoral Act that “any information given by a candidate in the affidavit or any document submitted by that candidate is false” has the burden of proving his assertion in order to be entitled to judgment under Section 31 (6) of the Electoral Act, 2010.
Similarly, whoever asserts that the candidate in an election had “presented forged certificate to the Independent National Electoral Commission” has the onus of proving beyond reasonable doubt that the candidate had in fact presented a forged certificate. In any proceeding where commission of crime by a party is directly in issue the proof beyond reasonable doubt is the standard of proof. See Nwobodo v. Onoh (1984) 1 SCNLR 1; Torti v. Ukpabi (1984) 1 NSCC 141 at 145, (1984) I SCNLR 214.”
3. ENGR. MUSTAPHA YUNUSA MAIHAJA VS ALHAJI IBRAHIM GAIDAM & ORS (2018) 4 NWLR (PART 1610) 454 AT 489 A

– B per BAGE, J.S.C. who said.
“The necessary question is what must a party prove to succeed on the allegation of forgery and false declaration.
As rightly held by the Court below, it is crucial to prove:
(1) The existence of a document in writing;
(2) That the document or writing was forged;
(3) That the forgery was by the person being accused;
(4) That the party who made it knew that the document or writing was false; and
(5) The party alleged intended the forged document to be acted upon as genuine.”
See Alhaji Kashim Ibrahim Imam & 2 Ors v. Senator Ali Modu Sheriff & 11 Ors (2005) 4 NWLR (Pt.914) 80 and APC v. PDP (2015) 15 NWLR (Pt. 1481) 1.
I have noted conjectures, speculative and inferential analogies on the part of the appellant in drawing a nexus between the documents submitted by the 1st respondent to the 3rd respondent in form CF001 (exhibit Maihaja 13). The 1st respondent did not state in the said declaration that Borno State was created in 1969 and/or that it was Borno State that issued the testimonial in question. The appellant has also not debunked or disproved the fact that, on

the face of the said testimonial, nothing indicates the fact that it was issued by Borno State or by Yunusari Local Education Authority. I also agree with the learned counsel to the 1st and 2nd respondents that there is no evidence from the appellant that “Yunusari Primary School”, which the 1st respondent stated in his Form CF001 (exhibit Maihaja 13) that he attended between 1963 to 1969, was never in existence at that particular period.
The allegations of dates of birth made by the appellant as basis for seeking the nullification of the 1st respondent elected is also, in our considered view misplaced. This is because the deposition in paragraph 21 (c) and (d) of the counter-affidavit filed by the 1st respondent at page 247 of the record of appeal that the 1st respondent indicated that he was born on 15th September, 1956. This evidence is unchallenged and also further corroborated by form CF001 filed on oath (page 118 of record of appeal) by the 1st respondent and by exhibit Maihaja 13A1 which was issued by National Population Commission which has the statutory responsibility under Section 6(1)(b) of the National Population Commission Act, Cap. N67, Laws of Federation, 2004.

The consequence of submitting forged document to the 3rd respondent is grave. It therefore required direct, sharp and somewhat precise evidence and proof which leads to no other conclusion that the 1st respondent forged documents and made false declaration to the 3rd respondent. The nature of evidence required in this kind of situation is similar to that of “mathematical precision” of two multiplied by two equals four (2×2=4).”
4. ATIKU ABUBAKAR & ANOR VS. INEC & ORS (2020) 12 NWLR (PART 1737) 37 at 110 B – C per I. T. MOHAMMED, CJN who said: –
“Let me clearly state here that the allegation made against the 2nd respondent by the appellants that he gave false information in his affidavit to the 1st respondent is firmly rooted in criminality which must be proved beyond reasonable doubt. It is not enough for the appellants to make such allegation: they must go further to lead credible evidence to prove such allegation. See Agi v. PDP (2016) LPELR – 42578 (SC): (2017) 17 NWLR (Pt. 1595) 386. Yusufu v. Obasanjo (2003) 16 NWLR (Pt.847) 554, Waziri v. Geidam (2016) 11 NWLR (Pt. 1523) 230, Emmanuel Udom v. Umana (No. 1)

(2016) 12 NWLR (Pt. 1526) 179. Okechukwu v INEC (2014) 17 NWLR (Pt. 1436) 255.”
On page 154 G- H of the Report SANUSI, J.S.C. also said: –
“In fact, where some allegations of corruption forgery or falsification are alleged, such allegations having the flavour of criminality must be proved beyond reasonable doubt. See Ojukwu v. Yar’adua (2009) 12 NWLR (Pt. 1154) 50 at 140: Imere v. Salami (1989) 2 NEPLR 131. Omisore v Aregbesola (2015) 15 NWLR (Pt.1482) 205 at 321. It needs to be noted here that the appellants failed to lead adequate and reliable evidence to establish what had actually transpired in various election areas in the entire nation. See Buhari v Obasanjo (2005) 13 NWLR (Pt.941) 1 at 299: Andrew v. INEC (2018) 9 NWLR (Pt. 1625) 507.”

The Appellants called six witnesses and none of them was able to establish or prove the damnifying allegations of breach of Section 31(5) and (6) of the Electoral Act 2010 as amended and violation of Section 182 (1) (j) of the Constitution of the Federal Republic of Nigeria 1999 as amended made against the 1st Respondent. All the witnesses hammered on was that the photocopy of the Degree Certificate 1st

Respondent claimed to have obtained from University of Ibadan did not show signature of the Registrar of the University and the date of issue of the certificate. The Appellants did not call any witness from any of the Educational Institutions the 1st Respondent stated in his FORM EC9 to have attended and which issued the Certificates in 1st Respondent’s favour, in order to debunk the originality or authenticity of the Certificates all of which the Appellants with all fanfare claimed were forged.
There is also no scintilla of evidence to support the serious allegation that the 1st Respondent submitted false documents or that he gave false information in his FORM EC9 to support his educational qualification to enable him contest the Edo State Gubernatorial election held on 19th September, 2020.
I have read carefully the pieces of evidence given by the Appellants witnesses and the evidence called by the Respondents along with the documents tendered by the Appellants as well as the 1st Respondent and I have no doubt in my mind that the findings of the lower Court were apt and unassailable. The Learned trial Judge in a well-reasoned judgment said on

page 1462 as follows:
“To that extent, I find paragraphs 10, (i), (ii), (iii), 26 (i) 27 and (i) and (ii) of the Plaintiffs’ statement of claim relevant. The case put forward by the Plaintiffs in a nutshell is that the 1st Defendant submitted forged certificate of “O” Level purportedly issued by WAEC and forged Degree certificate Issued by the University of Ibadan. As I stated earlier, the 1st and 2nd Defendants have vehemently denied the Plaintiffs’ allegations. See paragraphs 3, 3(a), 5, 5(a), 5(b) (i), 5(c) – 5(f), 7, 8, 9, 9(a), 11(c), 15 – 17(i), (ii), (iii), (iv) and (v) of the 1st Defendant’s statement of defence, and paragraphs 4, 5, 5(a), 6, 7, 8, 9, 29, 31, 33 (i) (ii) and (iii) of the 2nd Defendant’s statement of Defence.
In an attempt to prove the allegations in their statement of claim the plaintiff called six witnesses and tendered exhibits. However, none other witnesses was able to prove that the Certificates was forged, interestingly, all the Plaintiffs’ witnesses admitted under cross-examination that none of them had been to the University of Ibadan verify the authenticity of the 1st Defendant’s Degree Certificate. One would

have expected the Plaintiffs or any of their witnesses to endeavor to check or inquire with the University authorities about the authenticity of the Degree Certificate issued to the 1st Defendant.
What played out in this case is that the Plaintiffs only relied on the photocopy of the 1st Defendant’s Certificates submitted to the 3rd Defendant via exhibit PL2, (that is, Form EC9). The apparent discrepancies were satisfactorily explained in the course of taking evidence in this suit. See specifically the explanations of PW1, PW3, PW4 and PW6 to the effect that when an original document in a foolscap is photocopied on A4 size paper, some portion of the original document could be cut off, unless the photocopier machine is adjusted to the level of A4 size paper for all the information in the original to be captured.”
And on page 1463 the lower Court also said:
“In the instant case, no iota of evidence talkless of proof beyond reasonable doubt as required by law was: brought by the Plaintiffs to substantiate and prove allegation of forgery against the 1st Defendant. A situation where the Plaintiffs have not bothered to inquire from the

University of Ibadan whether the Degree Certificate in the possession of the 1st Defendant was validly issued to him or not, is in my humble view a complete failure to discharge the burden of proving the allegation of forgery against the 1st Defendant.”
The above findings of the lower Court cannot be faulted.
It is also very crucial to say that the Appellants abdicated their duty of proving the case postulated on the pleading and submitted that presentation to Court of the defective photocopy of the 1st Respondent’s Degree Certificate was sufficient to prove all the allegations contained in their pleadings and that no explanation is permitted under the law as to how the photocopy of the Certificate was done. They also claimed that there is no duty on them to call any evidence from the University of Ibadan because they never pleaded that the Certificate was not issued and their case was not about authenticity of the Certificates but that 1st Respondent lied in his Form EC9 when he claimed that the photocopy of the certificate was part of his qualification. To the Appellants they have thereby proved their reasonable grounds to believe that

information given by 1st Respondent in his Affidavit was false under Section 31 (5) and (6) of the Electoral Act, 2010 as amended.
The Appellants submissions is with profound respect, highly misconceived. The onus and standard of proof required under the evidence Act and the Constitution is for the Appellants to prove the information that was false and the forgery committed beyond reasonable doubt. The forged documents and their originals must be produced in order to discern which are the originals or authentic certificates and how they were forged. Failure to call evidence from the institutions that issued the Certificates and the proof of particulars of forgery committed on those certificates and false information passed to 3rd Respondent (INEC) as pleaded by them knocked the bottom out of the Appellants case. See:
1. ABUBAKAR SADIQ MOHAMMED VS. HON A. M. WAMMAKO (2018) 7 NWLR (PART 1619) 573 at 585 H to 586 A – C per NWEZE J.S.C., who said:
“My Lords, it is evident that the lower Courts, rightly, concluded that the appellant failed to prove his case. In the main, his contention was that the respondents were deemed to have admitted

his averments having not debunked them in a counter-affidavit.
With respect, I entirely, endorse the submission of the learned senior counsel for the first and second respondents that since the appellant sought for declaratory reliefs he had an obligation to advance evidence in proof thereof. The reason is not far-fetched. Courts have the discretion either to grant or refuse declaratory reliefs.
Indeed, their success, largely, depends on the strength of the plaintiff case. It does not depend on the defendant’s defence, Maja v. Samouris (2002) 7 NWLR (Pt. 765) 78; CPC v. INEC (2012) I NWLR (Pt. 1280) 106, 131. This must be so for the burden on the plaintiff in establishing declaratory reliefs is often, quite heavy, Bello v. Eweka (1981) 1 SC 101; Okedare v. Adebara (1994) NWLR (Pt. 349) 157; Dumez Nig Ltd v. Nwakhoba (2008) 18 NWLR (Pt. 1119) 361, 374.
What is even worse in the instant case is the fact that the plaintiff made a host of criminal allegations against the first respondent. He thus, had a duty to prove these allegations beyond reasonable doubt, Ndoma-Egba v. ACB Plc (2005) 7 SC (Pt. 111) 27, (2005) 14 NWLR (Pt. 944) 79; APC v. PDP

(2015) 15 NWLR (Pt. 1481) 1, 66-67.” (underlined mine).
At pages 591 E – H to 592 A – C my Lord KEKERE-EKUN, J.S.C. has this to say:
“The substance of the originating summons before the trial Court was the appellant’s contention that the 1st respondent, a member of the same All Progressives Congress (APC) to which he also belongs, submitted false information to the 3rd respondent in his Form CF001 and was therefore disqualified from standing as the candidate of the party for the 2015 General Election for Kware/Wammakko Federal Constituency of Sokoto State. The alleged false information relates to his educational qualifications at the tertiary level. All that the appellant relied on at the trial Court were the Form CF001 submitted by the 1st respondent in 2011 when he previously contested and won the same seat and the Form CF001 submitted in respect of the 2015 exercise contending that certificates relied upon in the 2011 exercise were omitted from the form submitted for the 2015 exercise because they were forged. The appellant also relied on the fact that the 1st respondent did not file a counter-affidavit challenging the averments in support

of the originating summons.
The law is well settled that in a claim for declaratory reliefs (as in the instant case), the plaintiff must prove his entitlement to such declaratory reliefs by cogent and credible evidence. He must rely on the strength of his own case and not on the weakness of the defence (if any). Indeed, a declaratory relief will not be granted on the basis of admission by the adverse party. See: Dumez Nig. Ltd. v. Nwakhoba (2008) 18 NWLR (Pt. 1119) 361; Wallersteinel v. Moir (1974) 3 ALL ER 217 @ 251; Bello v. Eweka (1981) 1 SC (Reprint) 63; Emenike v. P.D.P (2012) LPELR -7802 (SC), (2012) 12 NWLR (Pt.1315) 556; Matanmi v Dada (2013) LPELR-19929 (SC), (2013) 7 NWLR (Pt.1323) 319. It follows therefore that the failure of the 1st respondent to file a counter-affidavit cannot enure in the appellant’s favour.
Furthermore, the allegation of forgery is criminal in nature. The standard of proof is beyond reasonable doubt. Evidence that would establish the allegation in this case beyond reasonable doubt would include:
(a) exhibiting both the document from which the alleged forgery was made and the forged document;
(b) evidence

that it was the 1st respondent who forged the document(s);
(c) communication from the Polytechnic of Sokoto State disputing the 1st respondent’s claim to have studied there.
See: A.P.C v. P.D.P & Ors (2015) LPELR-24587 (SC), (2015) 15 NWLR (Pt.1481) 1; Ndoma-Egba v. A.C.B. Plc (2005) 14 NWLR (Pt. 944) 79.
None of this evidence was supplied before the trial Court. The Court below was therefore correct in affirming the finding of the trial Court that the appellant’s action did not disclose a reasonable cause of action and that in the absence of a ground of appeal attacking that finding. it subsists.”
2. JOE ODEY AGI V. PDP (2017) 17 NWLR (PART 1595) 386 AT 457 G – F per OGUNBIYI, J.S.C. who said:
“For forgery or falsification of age to be sustained, the documents purportedly forged must be a false representation of genuine documents. This is because it will be preposterous to allege the forgery of a fake or counterfeit document, as rightly submitted by the senior counsel for the 3rd respondent. See the cases of ACB Plc. v. Ndoma Egba (2000) 8 NWLR (Pt. 669) 389 at 401, Adelaja v. Alade (1999) 6 NWLR (Pt. 608) 544 at 558,

Ikoku v. Oli (1962) 1 SCNLR 307 and Adewale v. Olaifa (2012) 17 NWLR (Pt. 1330) 478.
Under the law, forgery cannot be grounded in respect of a document in the absence of its original. In other words, mere presentation of series of documents by a party, alleging forgery, without pinpointing clearly the original one from the counterfeit cannot establish a case of forgery or falsification of age against the 3rd respondent.”
The Appellants did not prove also that the 1st Respondent deliberately or intentionally presented the defective photocopy of his certificate to 3rd Respondent (INEC) with a view to gaining any advantage. The 1st Respondent adequately, vide DW2, explained his position as to what really happened.
The 1st Respondent also picked up the gauntlet and called DW2 from the University of Ibadan who gave vivid and unchallenged evidence that the 1st Respondent duly attended the University of Ibadan and obtained the Degree Certificate claimed by him. On this, learned trial Judge found on pages 1465 to 1467 of the record (page 47 – 49 of his judgment) as follows:
“In the instant case, exhibits D1, D2, D3 and D4 are all direct

evidence showing that the 1st Defendant did not forge any of his educational documents submitted to INEC (3rd Defendant) in this suit. To crown it all, DW2, who is the Deputy Registrar (Legal) in the University of Ibadan identified exhibit D4, that is, the original copy of the Degree Certificate awarded to the 1st Defendant by the University of Ibadan and stated in paragraphs 7, 8, 9 and 10 of his witness statement on oath deposed to on 31/12/20, which I hereby reproduced:
“7. That I know as fact and from available records at my disposal that the 1st Defendant entered the University of Ibadan in 1976 while he was admitted to read classics (later renamed Classical Studies around 1979).
8. That I know as a fact and from available records at my disposal that the Bachelor of Arts Degree Certificate was duly issued to the 1st Defendant. GODWIN NOGHEGHASE OBASEKI, by the University of Ibadan and the Certificate is not false or forged but is a genuine and authentic degree Certificate of the University of Ibadan, though I observe that the one on the claim of Plaintiffs was not completely photocopied due to the largeness of the Certificate being more than

A4 paper size.
9. That I know as a fact and from the available records at my disposal that the Degree Certificate issued to the 1st Defendant, GODWIN NOGHEGHASE OBASEKI, by the University of Ibadan is dated 6th of July, 1979 and duly signed by the then Vice Chancellor and the Registrar of the University, namely, Professor Tekena N. Tamuno and Mr. S. J. Okudu both of blessed memory.
10. That I know as a fact and from the available records at my disposal that the 1st Defendant, GODWIN NOGHEGHASE OBASEKI, met the minimum entry requirements of the University of Ibadan in 1976 to read Classics later renamed Classical Studies by the combination of his Higher School Certificate (HSC) and his West African Examination Council O/Level Certificate irrespective of the absence of a credit in English Language.
The depositions of DW2 in paragraphs 7, 8, 9 and 10 of his witness statement on oath and the original copies of a relevant educational Certificates of the 1st Defendant have put to rest any argument as to whether the 1st Defendant was properly and validly admitted into the University of Ibadan to read Bachelor of Arts Degree in classical

studies and whether his said Certificates were forged.”
In effect, look at from any angle the Appellants performed abysmally in their quest to establish the allegations of crimes laid against the 1st Respondent in their statement of claim. They failed to prove their case even on the balance of probability. The 1st Respondent’s witnesses by their oral evidence and documents tendered glaringly disproved all the allegations that he presented false/forge certificates or that he presented false documents or information to the 3rd Respondent in his FORM EC9 or Affidavit to contest for the office of Governor of Edo State in September, 2020.

The Appellants did not appeal the findings (on pages 1465 – 1467 of the record) and they must be taken as the truth and that they are satisfied with the said findings.

It must be stated also that the 1st Respondent did not violate Section 31 (5) and (6) of Electoral Act 2010 and Section 182(1)(j) of the 1999 CFRN as amended. 1st Respondent fully complied with the relevant laws. See TERVER KAKIH V. PDP (2014) 15 NWLR (PART 1430) 374 at 424 C – H per GALADIMA, J.S.C. who said:

“However, the Courts below recognized the fact that the issue of non-qualification of 4th respondent by virtue of non-presentation of certificate was never the case of appellant from the beginning as earlier observed. The appellant has contended that having regards to Section 182(1)(j) of the 1999 Constitution the 4th respondent is necessarily required to present his certificate to the 1st and 2nd respondents in order to prove his qualification to contest the election, otherwise he is disqualified under S. 177 (d) of the Constitution and that by S. 167 (d), of the Evidence Act 2011, the failure is fatal, because if produced it would have been unfavourable to him. This contention is misconceived. Submission or presentation of certificate is not the requirement of S. 177(d) of the Constitution as regards the Gubernatorial screening process. The process of screening which the appellant and 4th respondent undertook, with the 1st respondent requires the candidate to fill in his qualification in the form and to swear to a verifying affidavit that the information contained in Form CF001 was true. This takes away the necessity of presentation of the actual certificate to the 1st and 2nd

respondents.
When the appellant was confronted under cross-examination, with exhibit C and D (the nomination Form) which is similar in form with INEC FORM CF001, and which the 1st respondent used in screening the appellant and 4th respondent he stated that he did not attach his certificate to his party nomination Form and that the same procedure of not attaching certificates to the nomination form applied to all candidates. He admitted that presentation or submission of certificate was not a requirement for the purpose of screening. See page 711 Vol. 1 of the record.
In any case. it is not a requirement of S. 177(d) of the Constitution for the candidate to necessarily present the certificate to qualify for election to the office of Governor of a State.”
(Underlined mine)

Consequently, issues 1 and 2 are hereby resolved against the Appellants.

The complaint of the Appellants under issue 5 is that the lower Court failed to consider and decide the issue raised concerning the evidence of DW1 which they considered to be hearsay. The major complaint is that the evidence as contained in the witness statement of the DW1 on pages

298 – 306 of the record constitutes admixture of facts within the DW1’s knowledge and facts outside DW1’s personal knowledge and that notwithstanding that DW1 failed to identify in the said evidence as contained in the witness statement which portion, he spoke of from his knowledge yet the trial Judge relied on the said hearsay evidence to decide in 1st Respondent’s favour.

Another point the Appellants vehemently contended is that DW1 was not the maker of Form EC 9 Exhibit PL2 tendered by the Appellants and that the Degree Certificate of University of Ibadan attached to it and other Certificates were not issued to DW1 hence according to them he (DW1) being a stranger could not give direct evidence on the contents of the documents.

Sections 37 and 38 of the Evidence Act which provide as follows:
“37. Hearsay means a statement-
(a) oral or written made otherwise than by a witness in a proceeding; or
(b) contained or recorded in a book, document or any record whatever, proof of which is not admissible under any provision of this Act, which is tendered in evidence for the purpose of proving the truth of the matter stated in it.
38. Hearsay evidence is not admissible except as provided in this Part or by or under any other provision of this or any other Act.”
1. GODDY EDOSA & ANOR V MRS E. OGIEMWANRE (2019) 8 NWLR (PART 1673) 1 AT 28 D – E per GALUMJE, J.S.C. who said: –
“Relevant to this judgment is Section 37(a) of the Evidence Act. Black’s Law Dictionary, 9th Edition at page 790, defines hearsay as follows:-
“Traditionally, testimony that is given by a witness who relates not what he or she knows personally but what others have said and that is therefore dependent on the credibility of someone other than the witness, such testimony is generally inadmissible under the rules of evidence.”
Finally, Section 38 of the Evidence Act 2011

outrightly prohibits the admission of hearsay evidence except as provided by the Evidence Act in the following words: –
“Hearsay evidence is not admissible except as provided in this part or under any other provision of this or any other Act.”
From the above analysis therefore hearsay testimony is inadmissible in evidence, much as the evidence tends to establish the truth of what the witnesses were told, except it is proved that the exceptions under Section 39 of the Evidence Act exist. In the instant case the testimony of DW2, DW3, in which the two lower Courts placed reliance on are hearsay and inadmissible. The evidence of PW6 did not state that one of the two houses that were shared was given to the respondent and again he did not state that he actually witnessed the sharing of the property of Onwenke Agho. His evidence is therefore not very helpful to the respondent. See A-G., Rivers State v. A. Akwa Ibom State (2011) 8 NWLR (Pt. 1248) 31.”
2.WADA VS THE STATE (2019) 15 NWLR (PART 1696) 448 AT 471 A – C per GALUMJE, J.S.C. who said: –
“By Section 126(b) of the Evidence Act, 2011, oral evidence must, in all cases

whatever, be direct, if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard that fact. See Judicial Service Committee v. Omo (1990) 6 NWLR (Pt. 157) 407. In Utteh v. The State (1992) 2 NWLR (Pt. 223) at 257, this Court, per Nnemeka-Agu, J.S.C. had this to say on hearsay evidence as follows: –
“The evidence of a statement made to a witness by a person who is not himself ‘as a witness’ may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence not the truth of the statement, but the fact that it was made.”

It must be stated that it was the Appellants who through PW2 tendered FORM EC9 filled by the 1st Respondent as Exhibit PL2. The said exhibit had attached to it copies of the credentials or educational certificates of the 1st Respondent. The said Exhibit PL2 was/is the Appellants’ case against the 1st Respondent.

Contrary to the submission of the Appellants to the effect that DW1 sought to explain the reasons for the

difference between the University of Ibadan Degree Certificate submitted by 1st Respondent to 3rd Respondent and what the Appellants’ Learned Senior Counsel referred to as the University Degree Certificate purportedly issued by the University of Ibadan to the 1st Respondent which was never submitted to the 3rd Respondent, what the evidence of DW1 sought to explain and clarified was the reason behind the omission of signature of Registrar of University of Ibadan and date of issue of the 1st Respondent’s photocopy of his (1st Respondent) Degree Certificate issued to him by University of Ibadan attached to FORM EC9 Exhibit PL2 tendered by the Appellants. DW1 was the person asked to make the photocopy of the said Certificate for the purposes of attaching same to Form EC9 and stated that it was due to the fact that the portions omitted were cut off or not picked by the photocopying machine in the process of photocopying and not that the Original Bachelor of Arts Degree Certificate issued to 1st Respondent by the University of Ibadan was forged or that it is false. The evidence of DW1 was justifiably believed by the lower Court. There is nothing in the evidence

amounting to hearsay because the DW1 came into possession of the said Certificate and he could positively testify as to what he (DW1) was asked to do with the Certificates which he actually took for photocopying to enable the 1st Respondent attach them to his Form EC9 submitted to 3rd Respondent.

It is not the case of the Appellants that 1st Respondents did not possess those certificates as at the time he filed his FORM EC9 or that DW1 was not asked to make photocopies of the certificates including the Degree Certificate which was taken for photocopy which did not fully caption the Original Certificate. The reason for the minor variation or anomaly contained in the photocopy which was made the pivot of Appellants have been adequately explained by the DW1.

By the Appellants’ own showing, the evidence of the DW1 about the 1st Respondents Degree Certificate is not hearsay as the Appellants categorically stated in this Court that their case against the 1st Respondent is not about genuineness or authenticity of Degree Certificate issued to him by the University of Ibadan in 1979. See for examples:
1. On page 25 of the Appellants’ Brief of

Argument paragraph (v) and (vi) therefore, the Appellants Learned Senior Counsel submitted as follows:
“(v) On the way to the conclusion of the learned trial judge’ quoted above, the Court had misdirected itself at pages 1462 and 1463 when it held that none of the witnesses of the appellants had been to the University of Ibadan to verify the authenticity of the 1st respondent’s Degree Certificate or whether the degree certificate in the possession of the 1st respondent was validly issued to him. But as argued above, the case of the appellants was not concerned with the authenticity of the 1st Defendant’s degree certificate or whether the degree certificate in the possession of the 1st respondent was validly issued to him.
(vi) Rather the appellants’ case was about the degree certificate presented by the 1st respondent to INEC. There was therefore no need for the appellants to embark on any journey to University of Ibadan to verify authenticity of any degree certificate that may have been issued to the 1st respondent.”

(2) On page 26 paragraphs (ix) and (x) the Learned Senior Counsel to the Appellant submitted as follows:

“(ix) Further submit that the holding of the trial Court at page 1464 that the 1st respondent called DW1 who tendered all the original copies of the 1st Defendant’s certificates which were never presented to INEC, shows again the failure of the trial Court to appreciate the case made by the appellants. The case of the appellants was not about any original certificates in possession of the 1st respondent but rather the degree certificate he presented to INEC within the meaning of Section 182(1)(j) of the 1999 Constitution as amended.
(x) In the light of the foregoing, submit, all allusions by the learned trial judge to some paragraphs of the witness statement of DW2 showing that the 1st respondent attended University of Ibadan to read Classics and that he was issued with the degree certificate on 6th July, 1979 in his possession and that there was no proof that it was forged, with respect constitute a misapprehension of the case of the appellants which has only to do with degree certificate presented by the 1st respondent to INEC as he also pleaded at paragraph seven (7) of his statement of defence at page 290.”

The submissions with considerable

respect to the Learned Senior Counsel to the Appellants clearly overlooked the settled position of the law that a person complaining of presentation of forged certificate or presentation of false documents or certificates allegedly forged or falsely presented, must produce the original of the document from which forgery was made and establish all elements of forgery or falsification alleged as posited by Section 135(1) (2) of the Evidence Act 2011 and the settled law as firmly established by the apex Court in the land, the Supreme Court of the Nigeria.
Suffice to refer to some of the decisions:
1. DR. SAMPSON UCHECHUKWU OGAH VS DR. OKOZIE IKPEAZU (2017) 17 NWLR (PART 1594) 299 at 336 G – H to 337 A per M. D. MUHAMMAD J.S.C.
2. JOE ODEY AGI SAM V. PDP & ORS (2017) 17 NWLR (PART 1595) 386 at 456 B – H to 457 A – H per OGUNBIYI, J.S.C. who said:
“I have restated earlier in this judgment also that the nature of the allegation lodged against the 3rd respondent by the appellant is firmly rooted in criminality and which must be proved beyond reasonable doubt as rightly held by the lower Court. See Section 135(1) of the Evidence Act; See

also the cases of Bayo v. Njidda (2004) 8 NWLR (Pt. 876) 544; Yakubu v. Jauroyel (2014) 11 NWLR (Pt. 1418) 205; Yusufu v. Obasanjo (2003) 16 NWLR (Pt. 847) 554. In proving falsification of age beyond reasonable doubt, it is not enough for an appellant qua plaintiff to demonstrate the act of falsification of age, it is also incumbent on him to establish that the act was intentional. In other words, that it was done with the intention to gain an advantage by the alleged act of criminality. As rightly submitted on behalf of the 3rd respondent, this again brings us to the provisions of Section 177 (b) of the 1999 Constitution where mens rea in falsification of age for eligibility to contest election as Governor must, of necessity, relate to circumventing the age prescription of 35 years to contest election. With the case at hand, having been instituted under an originating summons procedure which is triable on affidavit evidence, it cannot serve as a means of proving criminal allegation beyond reasonable doubt.
I seek to say at this juncture that the onus of proof on the appellant is in respect of the following ingredients: –
(a) That there is a

document in writing:
(b) That the accused knew the document to be false.
(c) That the accused presented the said document to the other party with the intention that it would be acted upon to the detriment of the victim in the belief that it is genuine.
See Smart v. State (1974) II SC 173; also, Awobotu v. State (1976) 5 SC 49 and Daggash v. Bulama (2004) 14 NWLR (Pt. 892) 144 at 232.
For all intents and purposes, the appellant did not lead any evidence to show that the purported false declaration ‘in age alleged against the 3rd respondent were falsified with the criminal intent of meeting the constitutional age limit of 35 years set by the Constitution. Moreover, in the absence of any evidence that none of the purported age declarations was acted upon to the detriment of anybody, the issue of forgery could not have been proved. It is pertinent to state also that the appellant did not appeal the lower Court’s finding in accepting the fact that the mistake in the entry on the 3rd respondent’s nomination form was that of his aide and not intentional. Therefore, the appellant’s submission in that behalf was grossly misconceived.

See Amadi v. FRN (2008) 18 NWLR (Pt. 1119) 259 at 277 – 278.”
Also, at page 1348 of the record, the lower Court rightly held thus when it said: –
“On the contrary, the depositions in the affidavit of the appellant do not amount to proof beyond reasonable.”
Again, the appellant did not deem it necessary to appeal the above specific finding. Thus, the appellant conceded to the lower Court that he (the appellant) could not prove the allegation of falsification of age beyond doubt vide affidavit evidence.
It is imperative to say further that the appellant with the burden of establishing which of the two sets of age declarations exhibit JA1 and JA10 is original or counterfeit document as portrayed by paragraphs 17 and 20 of his affidavit on page 341 of the record.
Affidavit evidence would make it virtually impossible for the appellant to prove the allegation of forgery/falsification of age beyond reasonable doubt in the circumstance which would otherwise require proof based on identifiable, cogent and compelling evidence. See Uwagboe v. State (2008) 12 NWLR (Pt.1102) SC 621 at 647, also Ikenta Best (Nig) Ltd v. A.G., Rivers State (2008) 6

NWLR (Pt. 1084) SC 612.
For forgery or falsification of age to be sustained, the documents purportedly forged must be a false representation of genuine documents. This is because it will be preposterous to allege the forgery of a fake or counterfeit document, as rightly submitted by the senior counsel for the 3rd respondent. See the cases of ACB Plc. v. Ndoma Egba (2000) 8 NWLR (Pt. 667) 387 at 401, Adelaja v. Alade (1999) 6 NWLR (Pt. 608) 544 at 558, Ikoku v. Oli (1962) 1 SCNLR 307 and Adewale v. Olaifa (2012) 17 NWLR (Pt. 1330) 478.
Under the law, forgery cannot be grounded in respect of a document in the absence of its original. In other words, mere presentation of series of documents by a party, alleging forgery, without pinpointing clearly the original one from the counterfeit cannot establish a case of forgery or falsification of age against the 3rd respondent.” (underlined mine).

In any event, the educational institution that issued the Degree Certificate, that is, the University of Ibadan testified vide DW2, its DEPUTY REGISTRAR, LEGAL, ABAYOMI SAMUEL AJAYI who confirmed unequivocally that the University of Ibadan issued the

Original Bachelor of Arts Certificate tendered as Exhibit D4 to GODWIN OBASEKI the 1st Respondent; thereby knocking out completely the Appellants’ case against the 1st Respondent. The evidence of DW1, DW2 and DW3 fully disproved the specious case postulated by the Appellants against the 1st Respondent.

The Learned trial Judge appreciated the evidence led and had no difficulty in holding as follows:
“On his part, the 1st Defendant has called DW1 who tendered all the original copies of the 1st Defendant’s West African Examinations Council’s School Certificate, WAEC Higher School Certificate, Primary School Leaving School Certificate issued to him by the University of Ibadan on July 6, 1979 and signed by the Vice Chancellor of the University, the Registrar of the University and the logo of the University of Ibadan. These documents are what is known in law as direct evidence.” See page 1464 of the record.

On the page 1465 of the record, the learned trial Judge also found:
“In the instant case, exhibits D1, D2, D3 and D4 are all direct evidence showing that the 1st Defendant did not forge any of his educational documents submitted to

INEC (3rd Defendant) in this suit. To crown it all, DW2, who is the Deputy Registrar (Legal) in the University of Ibadan identified exhibit D4, that is, the original copy of the Degree Certificate awarded to the 1st Defendant by the University of Ibadan and stated in paragraphs 7, 8, 9 and 10 of his witness statement on oath deposed to on 31/12/20, which I hereby reproduced.”

The learned trial Judge to my mind came to a justifiable conclusion that the Appellants failed to prove their allegations that the 1st Defendants forged his credentials Certificates. The DW1’s explanation on the photocopy of the certificate attached FORM EC9 was accepted by the lower Court. The DW1’s evidence was clearly admissible. The fact that Exhibit D4 was not issued to him would not disentitle him from explaining the circumstances of the impugned photocopy of Certificate which the Appellants latched upon howbeit without any legal justification to institute this action. The issues raised in respect of DW1’s evidence were fully considered by the lower Court and no miscarriage of justice was occasioned in the case. Issue 5 is resolved against the Appellants.

Under issue 4, the Appellants accused the lower Court of failure to consider and decide the objections raised by the Appellants against the admission of Exhibits D4, D8, D9, D10, D11, D12, D13, D14 and D15 tendered by the 1st Respondent’s witnesses. That the lower Court was aware that the Appellants reserved their argument on admissibility and Reply thereto by 1st Defendant till address stage in the substantive matter. The Learned Senior Counsel to the Appellants stated that the grounds of the Appellants objection to the documents were that the documents were neither frontloaded by 1st Respondent as required by the law but they were also not pleaded. That it was in breach of Order 13 Rule 35(b) of the Federal High Court (Civil Procedure) Rules 2019. That the Court failed to pronounce on the admissibility of the documents. That failure to pronounce on the evidence of DW1 and the said Exhibits have led to perverse judgment.

In reply, the Learned Silk to the Respondents submitted that Exhibits D8 – D15 were documents produced pursuant to subpoena served on the Registrar of the University of Ibadan and tendered in evidence through DW2 and that they could not

have been frontloaded. He contended that the law requiring frontloading of document has no application to subpoenaed witnesses.

There is no doubt that under the Federal High Court (Civil Procedure) Rules 2019, Parties to an action in Civil Proceedings are expected to frontload documents they intend to rely upon in support of their respective cases. See Order 3 Rule 3 and Order 13 Rule 35 of the Federal High Court Civil Procedure) Rules 2019.
The laudable aim and design of frontloading of witness statement on oath and other documents required to be frontloaded and accompanied the filing of Writ of Summons which must be simultaneously filed at the outset of an action is to enable the Court and the adverse party to know at the inception of the action the facts in issue, witnesses the plaintiff or Defendant intends to call and documents he would rely upon to establish his case or defence as set out in the pleadings. It eliminates incidences of springing unnecessary surprise(s) on the opponents. In other words, frontloading of processes saves a lot of valuable time in litigations as all facts or documents sought to be relied upon by a party are laid

bare before the Court or Tribunal seised of the matter. It is put in place in all Rules of Courts (High Court, Federal High Court and National Industrial Court) in order to obviate delay at pre-hearing session and trial the suits or actions.
See:
“APGA V ALH. U. TANKO AL-MAKURA & ORS (2016) 5 SCM 1 AT 14 – 15 per NWEZE, J.S.C. who said: –
“Indeed, in Ojukwu v. Yar’Adua and Ors [2009] 6 SCM 126, 155, this Court affirmed this rationale of the procedural device of frontloading thus:
The manifest intention of the totality of the provisions on frontloading in the Election Tribunal and Court Practice Directions is to ensure that only a petition which on its face and in the face of the accompanying written statement on oath discloses a reasonable cause of action that can go for trial. A petition which on the face of it is defective or which on the face of the written statements on oath discloses no reasonable cause of action should be struck out on the application of the respondent.
In contradistinction to this procedural aspect of the prescription on frontloading, it is clearly, evident that, without linking the frontload

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documents to his case, a petitioner would invariably, lose out as Tobi, J.S.C. emphasised in Ojukwu v. Yar’Adua (supra) at page 177.
Although by the operative provisions of the Evidence Act, extrinsic evidence of the contents of documents is inadmissible, Adelaja v Alade (1999) 6 NWLR (Pt 608) 544; Jiaza v Bamgbose (1999) 7 NWLR (Pt 610) 182, that does not obviate the need for the demonstration of the link between the said documents and his allegations in his pleadings. This is more so as in this case which involves mathematical calculations of deductions and additions, Ugochukwu v Cooperative Bank (infra); Onibudo v Akibu (infra); WAS v Savannah Ventures (infra); Obasi Brothers Merchant Co. Ltd v MBA Securities Ltd (infra).
In all then, the concept of frontloading, an offshoot of Lord Woolf’s Reforms, is a clear vindication of the dominant rationale of pleadings, that is, the avoidance of surprises to the adversary. Hence, the evergreen rule has always been that the raison d’etre of pleadings is to notify the adversary of the case he is to meet. The prescription, therefore, is that both parties should present their evidence (subject to the rule that

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parties are only required to plead facts and not evidence) so that the Court would be able to adjudicate on the issue” George v Dominion Flour Mills Ltd (1963) 3 NSCC 54.
It cannot be gainsaid, therefore, that the frontloading device is designed for the smooth administration of justice. In particular, by that practice, prospective Petitioners are discouraged from pursuing wantonly frivolous petitions. It [the frontloading devise] is; thus, at the Confluence of Civil Procedural jurisprudence and the Adjectival Law of Evidence.
As it is often the case, their streams [the provisions on frontloading documents and the evidential dimension relating to the proof of positive assertions] may meet in one proceeding [for example in an election petition].”
However, in this case enough facts were pleaded both in the statement of claim and 1st Respondent’s Statement of Defence pertaining to the credentials and or educational certificates of the 1st Respondent. The Appellants did not at any time make any formal application to the lower Court to stop the 1st Respondents’ witnesses from testifying without the frontloading of some of the documents the 1st

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Respondents sought to rely upon at the trial before taking further steps in the proceedings as stipulated in Order 51 of the Federal High Court (Civil Procedure) Rules 2019 which provides:
“ORDER 51 – EFFECT OF NON-COMPLIANCE
1. (1) Where in commencing or purporting to commence any proceeding or at any stage in the course of or in connection with any proceeding, there has by reason of anything done or left undone, been failure to comply with the requirement of these Rules, whether in respect of time, place, manner, form or content or in any other respect, the failure may be treated as an irregularity and if so treated, will not nullify the proceeding, or any document, Judgement or order.
(2) The Court may on the ground that there has been such a failure as mentioned in sub-rule (1) of this rule and on such terms as to costs or otherwise as it thinks just, set aside either wholly or in part the proceeding in which the failure occurred, any step taken in the proceeding or any document, Judgement or order, or it may exercise its powers under these Rules to allow such amendment (if any) to be made and to make such order (if any) dealing with the

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proceeding generally as it thinks fit.
2. (1) No application to set aside for irregularity any proceeding, any step taken in any proceeding or any document, Judgement or order, shall be allowed unless it is made within a reasonable time and before the party applying has taken any fresh step in the proceeding.
(2) No application under sub-rule (1) of this rule may be made by summons or motion on notice, and the grounds of objection shall be stated in the summons or motion on notice.”
The failure to frontload the said documents is an irregularity that is saved under the aforesaid Order 51 moreso that the Appellants did not timeously raise objection to the irregularity. The suit here is governed by Section 31 (5) & (6) of the Electoral Act and the Federal High Court (Civil Procedure) 2019 as opposed to procedure in purely election Petition proceedings governed specially by Section 145 of the Electoral Act which says:
“1) The rules of procedure to be adopted for election petitions and appeals arising therefrom shall be as set out in the First Schedule to this Act.
(2) The President of the Court of Appeal may issue

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practice directions to election tribunals.”
The Appellants cross examined the witnesses of the 1st Respondent extensively both on documents tendered by the said Defendants witnesses and through Appellants witnesses. They have not pointed to any injustice they suffered by the failure of the lower Court to rule or pronounce on their objections to admissibility of those documents which in any event the Appellants fully utilized in the prosecution of their case. To my mind, the Appellants suffered no miscarriage of justice and the decision of the lower Court or reliance placed on those documents, Exhibits D4, D8, D9, D10, D11, D15 cannot vitiate the judgment. The documents are admissible under the Evidence Act as they are all public documents which are prima facie admissible in proceedings. The Court cannot in the circumstance decree the reliefs sought to the Appellants.
This is not a proper case for this Court to invoke Section 15 of the Court of Appeal Act 2004. There is no discernible injustice done to the Appellants by the failure of the lower Court to pronounce on the admissibility or otherwise of those documents. There is no onus on the

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1st Respondent to help the Appellants who were claiming declaratory reliefs to establish their case. They did not make out any prima facie case and neither did they establish the initial onus placed on them by the law and as such no onus shifts to the 1st Respondent.
In any event, it is not every mistake or slip committed by a trial Court that will lead to reversal of judgment of lower Court where the record of appeal supports the findings of the trial Court. The failure to rule on the objections of the Appellants has not occasioned a miscarriage of justice.
The judgment of a trial Court must be read as a whole. See CHIEF ADEBISI ADEGBUYI VS ALL PROGRESSIVE CONGRESS (APC) & ORS (2014) 12 SCM (PT. 2) 30 AT 46 B – D per FABIYI, J.S.C. who said: –
“It rightly found that it is not every slip of a judge that can result in the judgment being set aside. For a mistake to so result, it must be substantial in the sense that it affected the decision appealed against. The case of Onajobi v. Olanipekun (1985) 11 SC (Pt 2) 156 is in point.
This Court said it clearly in Adebayo v. Attorney-General, Ogun State (2008) 2 SCNJ 352 at 366-367,

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(2008) 5 SCM, 1 per Niki Tobi, J.S.C. that: –
“In order to pick faults in judgment of a trial judge, appellate Court should not take paragraphs’ or pages in isolation or in quarantine but must take the whole judgment together as a single decision of the Court. An appellate Court cannot allow an appellant to read a judgment in convenient instalments to underrate or run down the judgment.”
I cannot fault the approach of the Court below. The reasoning process of the judge before the use of the word ‘dismissed’, to my mind, after a slow and careful reading of same, shows that it is a slip. The law allows a Court to rectify any slip in a judgment as long as it does not amount to a miscarriage of justice.
See Yakubu v. Omolaboje (2006) WRN 23 at 176, (2006) 1 SCM, 206. A party should not employ technicality to frustrate the justice a case. See Falobi v. Falobi (1976) 9-10 SC. 1, (1976) 1 NMLR 169.”
Issue 4 is resolved against the Appellants.

The last issue as treated by the Appellants is issue 3 which complained that the finding of the trial Court to the effect that evidence led by the Appellants through their witnesses was at

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variance with the allegation in pleadings. According to the Appellant, the learned trial Judge failed to make reference to such evidence which he said was at variance with pleadings. What the learned trial Judge found on page 1464 of the record is as follows:
“Another fundamental flaw in the case of the Plaintiffs is that while they alleged forgery against the 1st Defendant, the evidence brought is completely at variance with the allegation. In law evidence which is at variance with the averment in pleadings goes to no issue and should be disregarded. See in this regard, the case of ISIKWENU VS. IROH (2013) 11 NWLR (PART 1365) page 282 paragraphs G – H.”
The nucleus of the Appellant case could be seen in the declaratory reliefs sought from the lower Court which I have already reproduced at the inception of this judgment. They specifically accused the 1st Respondent of presentation of forged education Certificates to 3rd Respondent to enable him contest the Gubernatorial Election in Edo State on 19th September, 2020 and they set out what they perceived as the particulars of the falsehood/forgery of the said educational certificates and credentials

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of 1st Respondent in paragraphs 26, 27 and 28 of their statement of claim as follows:
“26. The Plaintiffs found out that 1st Defendant also presented a false/forged Advanced Level WAEC Certificate/Testimonial to the 3rd Defendant.
PARTICULARS OF FALSE/FORGERY
i. The A/level WAEC certificate presented by 1st Defendant to 3rd Defendant and dated June, 1976 shows that 1st Defendant obtained grades in only three subjects; Religious studies, Government and economics.
ii. The Testimonial issued by the institute of continuing Education in Benin City show that 1st Defendant sat for Advance Level examination in History, English, Literature, Economics and General-paper in May/June, 1975, 1st Defendant purportedly attended the said Institute and sat for the said A/Level examinations therein.
iii. While the purported WAEC Certificate reflects only economics as one of the A/Level Subjects that 1st Defendant sat for, the other subjects mentioned in the Testimonial are not reflected in the WAEC Certificate. There was no indication on the WAEC Certificate that the 1st Defendant was absent during the examination on such subjects.
iv. The

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WAEC Certificate is in conflict with the testimonial on the A/Level subjects that the 1st Defendant sat for and for which he obtained grades.
v. The WAEC Certificate is either false or the Testimonial is false as they cannot both be true.
vi. 1st Defendant presented both the WAEC A/Level Certificate and the Testimonial to 3rd Defendant on 29th June, 2020 in support of his qualification to contest for office.
27. The Plaintiffs aver that they applied through 2nd Plaintiff’s appointed legal practitioners to 3rd Defendant for Certified True Copies of INEC Form EC9 of 29th June, 2020 and INEC Form CF 001 of 11th July, 2016, together with the accompanying documents. The Plaintiffs application letter dated 6th July, 2020 would be relied upon during trial.
28. The 1st Defendant lied on Oath in his INEC Form EC9 of 29th June, 2020, when he claimed to have fulfilled all Constitutional requirements for the election to the office of Governor of Edo State scheduled for 19th September, 2020.
i) A person who presents a forged certificate to the Independent National Electoral Commission is disqualified by the provisions of

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Section 182(1)(j) of the Constitution of the Federal Republic of Nigeria, 1999 (as altered) from contesting for Election to the office of Governor of Edo State.
ii) 1st Defendant presented forged/false certificates in the form of university Degree, Advanced Level WAEC and Testimonial from the Institute of Continuing Election to the 3rd Defendant in a bid to help his qualification to contest for office.
iii) The presentation of these false document led 3rd Defendant and the public to believe that 1st Defendant indeed qualified to contest for the office of Governor of Edo State.”
As stated hereinbefore the Appellants did not call any person or witness from the Educational Institutions pleaded by them of which the 1st Respondent allegedly forged or falsified the certificate (s) emanating from such institution. The Appellant stated point blank that they did not need to call evidence from those Educational Institutions to prove their case. All they relied upon was that the photocopy of the Degree Certificate from University of Ibadan did not show the signature of the Registrar of University of Ibadan and date of issue of the Certificate.

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They reiterated their case of forgery and falsification of documents against the Appellant in paragraph 4.2 of Appellants Brief of Argument page 5 as follows:
“4.2. In beginning our treatment of this issue, it is helpful to underscore the important point that the case made by the appellant against the respondents rested on two principal grounds, i.e.,
(i) submission of false documents by the 1st respondent to the 3rd respondent (INEC) for the purposes of the September 20, 2020 Governorship election in Edo State contrary to Section 31 (5) and (6) of the Electoral Act, 2010 as amended.
(ii) presentation of a forged University of Ibadan degree certificate by the 1st respondent to the 3rd respondent (INEC) contrary to Section 182(j) of the 1999 Constitution as amended.”
To the Appellants, the mode of proof or establishment of their case has been set out in Section 31 (5) and (6) of the Electoral Act. Their argument on it can be found in paragraph 4.5 page 6 where contended thus:
“4.5. It is our contention that from a literal reading of Section 31 (5) of the Electoral Act 2010 as amended, the simple question for a Court to determine

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is whether the document submitted by a candidate to INEC is false. If the evidence establishes that the document is false, the case is made for an order to issue under Section 31 (6) of the Electoral Act. Section 31 (5) as worded does not permit of any explanation from the candidate as to why he submitted a false document to INEC. Once the evidence reveals that the document, he submitted is false in any sense, the case is made out for the Court to so hold.”
This no doubt is absolutely contrary to the position of the law as laid down in Section 135 of the Evidence Act 2011 which provides:
“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.
(3) If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on to the defendant.”

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See also the cases
(1) JOE AGI V PDP (2017) 14 NWLR (PT. 1595) 386 AT 455 A – C.
(2) MAIHAJA V GAIDAM (2017) LPELR 42474.
(3) ATIKU ABUBAKAR & ANOR VS. INEC & ORS (2020) 12 NWLR (PART 1737) 37 AT 103 G – H TO 104 A – C PER I. T MOHAMMED, CJN.
The onus lay squarely on the Appellants to produce two documents that is the forged document and the original of the documents or certificates allegedly forged or falsely presented.
The lower Court really appreciated the case postulated on the statement of claim and reliefs sought. It is in the address of the Appellants they engaged in ground shifting from facts pleaded concerning forged/false certificates presented to 3rd Respondent by 1st Respondent to proof under Section 31(5) and (6) of Electoral Act which they claimed “does not permit any explanation from the candidate as to why he submitted a false document to INEC.”
The Appellant in this Court also completely moved away from their pleaded case at the lower Court which was rooted in criminality. They had pleaded that the 1st Respondent forged his educational certificates/Results of examinations

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and deliberately presented them in aid of his qualification to contest the Gubernatorial Election in September, 2020 contrary to Section 31 (5) (6) of Electoral Act and Section 182 (1)(j) of the Constitution of the Federal Republic of Nigeria, 1999 as amended.
The Appellants change of position in this Court can be found in paragraphs (v) and (vi) page 25 of their Brief where they categorically stated that “the case of the appellants was not concerned with the authenticity of the 1st Defendant’s degree certificate or whether the degree certificate in the possession of the 1st respondent was validly issued to him.” and that “there was therefore no need for the appellants to embark on any journey to University of Ibadan to verify authenticity of any degree certificate that may have been issued to the 1st respondent.”
The pertinent question is what are the Appellants saying when they pointedly accused the 1st Respondent of having presented “forged/false certificates in the form of University Degree, Advanced level WAEC and Testimonial in 3rd Respondent in aid of his qualification to contest for office.” I am of the solemn view that all the

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Appellants are contending is that the 1st Respondent did not have the certificates he claimed to possess and that the certificates are fake same have been forged and falsely presented to 3rd Respondent. That he, 1st Respondent lied on oath when he claimed to possess the certificates enumerated by the Appellants.
The Appellants cannot be allowed in law to keep undulating and changing colours like a chameleon all in a bid to repair the extensive damage they have wittingly caused to their case. They were unable to prove and or establish the case and the task set for themselves on the pleading. They must be consistent in their pleading and in presentation and in proving their case both at the lower Court and in this Court. They cannot take one stance at the lower Court and take another position in this Court.
A trial Court as well as the parties must strictly keep to the pleadings of the parties and case presented. It has no jurisdiction to adjudicate on matters not pleaded or issues that are not well defined on the pleading. See: –
1. AFRICAN CONTINENTAL SEAWAYS LTD VS NDRGW LTD (1977) 5 SC 235 AT 249 – 250 per IRIKEFE, J.S.C. who said: –

<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
</br<>

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“Before bringing our commentary on pleadings to a close, we should like to recall the following statement by the learned authors of BULLEN & LEAKE on PRECENDENTS OF PLEADING 12th Edition p. 8.
The function of pleadings has been described as a reflection of the role of the Court and as an aspect of the adversary system of civil proceedings:
As the parties are adversaries it is left to each of them to formulate his case in his own way, subject to the basic rules of pleading… For the sake of certainty and finality, each party is bound by his own pleading and cannot be allowed to raise a different or fresh case without (due amendment properly made). Each party that knows the case he has to meet and cannot be taken by surprise at the trial.
The Court itself is as much bound by the pleadings of the parties as they are themselves. It is no part of the duty or function of the Court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by their pleadings. Indeed, the Court would be acting contrary to its own character and nature if it were to

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pronounce upon any claim or defence not made by the parties. To do so would be to enter the realms of speculation. Moreover, in such event, the parties themselves or at any rate one of them, might well feel aggrieved: for a decision given on a claim or defence not made, or raised, by or against a party is equivalent to not hearing him at all and may thus be a denial of justice.
2. HON. CHIEF OGBUEFI OZOMGBACHI V MR DENNIS AMADI & ORS LPELR – 45152 (SC) 1 AT 53 per PETER- ODILI, J.S.C. who said: –
“It needs be reiterated that parties are bound by their pleadings and no party is allowed to make a case different from what it set out from inception and so for the Appellant to seek to depart from their pleadings and embark on a fresh or brand new case different from the very beginning is an act in futility. The obvious reason is that a case retains its original nature from the commencement and the colour would not change because it is on appeal since an appeal or appeals are merely a continuum of that matter that entered from the very first time at the Court of first instance. It follows that the brilliant address of Counsel would not scratch the

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surface in the apparent quest or a change of nature of the case. See Effiom v C.R.S.I.E.C (2010) 14 NWLR (PT. 1213) 106; Alhassan v. Ishaku supra at 286 per Ogunbiyi, J.S.C.; Ogunsanya v The State (2011) LPELR – 2349 SC 44 – 54 per RHODES-VIVOUR, J.S.C.”
The lower Court appreciated the case put forward by the Appellants. As shown above reference was actually made to the evidence led by the Appellants that was at variance with the allegation in their pleadings. In the result, issue 3 is also resolved against the Appellants.

I am of the firm view that the Appellants’ appeal is quite unmeritorious and completely lacking in merit. The Appellants’ appeal IS HEREBY DISMISSED in its entirety.
The Judgment of the Federal High Court of Nigeria, Abuja Division delivered on 9th day of January, 2021 by HON. JUSTICE A. R. MOHAMMED IS HEREBY AFFIRMED.

The Appellants shall pay costs of N250,000 (Two Hundred and Fifty Thousand Naira) to the 1st Respondent. The Appellants shall also pay costs of N50,000 (Fifty Thousand Naira) each to the 2nd and 3rd Respondents.

STEPHEN JONAH ADAH, J.C.A.: I have had the privilege of reading in draft the

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judgment just delivered by my learned brother, PETER OLABISI IGE, J.C.A.

I am in total agreement with the reasoning and the conclusion in the leading judgment on all the issues generated by the parties in this appeal. This appeal is founded on the decision of the lower Court on the 9th day of January, 2021 wherein the lower Court dismissed the claim of the Plaintiffs now Appellants. The prominent reliefs in the Suit at the lower Court are woven around presentation of false/forged Certificates to the 3rd Respondent – Independent National Electoral Commission (INEC) for the purpose of the September 20, 2020 Governorship Election in Edo State contrary to Section 31 (5) & (6) of the Electoral Act, 2010 (as amended) and Section 182(1) of the 1999 Constitution (as amended). For ease of reference, Section 31 (5) & (6) provides:
(5) Any person who has reasonable grounds to believe that any information given by a candidate in the affidavit or any document submitted by that candidate is false may file a suit at the Federal High Court, High Court of a State or FCT against such person seeking a declaration that the information contained in the

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affidavit is false.
(6) If the Court determines that any of the information contained in the affidavit or any document submitted by that candidate is false, the Court shall issue an order disqualifying the candidate from contesting the election.
Then, Section 182(1) particularly Section 182 (1)(j) of the 1999 Constitution as amended provides:
“182 — (1) No person shall be qualified for election to the office of Governor of a State if —
(a) …
(b) …
(j) he has presented a forged certificate to the Independent National Electoral Commission.
From the Constitution to the Electoral Act, the law disqualifies any person found to engage in the presentation of a forged Certificate to the Independent National Electoral Commission (INEC). The Constitution to my mind meant well. Those who aspire to lead a State of the Federation

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of Nigeria must be people who are not found to have compromised on integrity and probity. Their character must outstandingly be seen to be without reproach and their hands found clean from forgery and false declarations.

The law however, places the onus of proving forgery of Certificate on any one who makes the allegation to prove his assertion in line with the law.

Let it be underlined here that forgery is well defined in our law. By Section 465 of the Criminal Code, forgery consists of making a false document or writing knowing it to be false and with intent that it may be used or acted upon as genuine. In Mohammed v. Wammako & Ors (2017) LPELR – 42667 (SC), the Supreme Court per Kekere-Ekun, J.S.C., held at pp. 26 — 27 that:
“…the allegation of forgery is criminal in nature. The standard of proof is beyond reasonable doubt. Evidence that would establish the allegation in this case beyond reasonable doubt would include: (a) exhibiting both the document from which the alleged forgery was made and the forged document; (b) evidence that it was the 1st respondent who forged the document(s); (c) communication from the institution or University

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disputing the 1st respondent’s claim to have studies there. See APC v. PDP & Ors. (2015) LPELR – 24587 (SC); Ndoma-Egba v. A.C.B. Plc (2005) 14 NWLR (Pt. 944) 79.”
By Section 135(1) and (2) of the Evidence Act 2011, the law makes it mandatory that if the commission of a crime by any party to any proceeding is directly in issue, the standard of proof is that of proof beyond reasonable doubt. The burden is not placed on any other party than the person who asserts that a crime has been committed. In all, the known authorities in our jurisprudence on the issue of allegation of forgery of document as elaborately demonstrated in the leading judgment of my learned brother in the instant case, evidence must abound to establish beyond reasonable doubt that the document was indeed forged and in this respect the document from which the alleged forgery was made and the forged document must be exhibited. The 1st Respondent must be established to be the person who forged the document. There must also be evidence to show that the Institution whose Certificate/document is allegedly forged has disputed the authenticity of the document. These mandatory requirements were

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completely absent from the case of the appellants at the lower Court. The understanding of the appellants from their brief before this Court is that under Section 31 (5) of the Electoral Act 2010 (as amended), once the evidence before the Court reveals that the document the 1st Respondent submitted is false in any sense, the case is made out for the Court to so hold. This is no doubt, is with due respect, a complete misunderstanding of Section 135(1) of the Evidence Act which places the onus on the appellants to prove beyond reasonable doubt the allegation of crime thrown at the 1st Respondent. In Nwaturuocha v. State (2011) 6 NWLR (Pt. 1242) 170, the Supreme Court held that proof beyond reasonable doubt simply means establishing the guilt of the accused person with compelling and conclusive evidence. A degree of compulsion which is consistent with a high degree of probability. In the instant case, the appellants from the record before us did not prove the allegation of forgery as required. The lower Court was therefore correct in dismissing the case of the appellants.

From the foregoing and the fuller reasons marshalled in the lead judgment, I also hold

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that this appeal is lacking in merit. I agree that the appeal be and it is hereby dismissed. I abide by the Order as to costs.

MOHAMMED MUSTAPHA, J.C.A.: I have had the privilege of reading in advance the judgment of my learned brother PETER OLABISI IGE, J.C.A. just delivered. I am entirely in agreement with the reasoning and conclusion reached therein.

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Appearances:

CHIEF AKIN OLUJINMI, SAN; ROLAND OTARV, SAN; AKINTOLU KEHINDE, SAN; KEHINDE OGUNWVMIJU, SAN WITH HIM, SYLVESTER IMHAMWOBE, ESQ., HON. HENRY ITSVEUWA, ESQ. AND OLUMIDE OLUJINMI, ESQ. For Appellant(s)

KEN MOZIA, SAN; OLUSEGUN JOLAWO, SAN; ROBERT EMUKPERVO, SAN WITH HIM, O. O. OSAZE-UZZI, ESQ.,OSINOWO, ESQ., O. U. ARCHIBONG, ESQ.- FOR 1ST RESPONDENT.
R. O. ISENALUMHE, ESQ. WITH HIM, KINSLEY IDAHOSA – FOR 2ND RESPONDENT.
M. A. BAWA, ESQ.- FOR 3RD RESPONDENT. For Respondent(s)

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