APC & ANOR v. OBASEKI & ORS
(2021) LCN/4981(SC)
In The Supreme Court
On Friday, May 28, 2021
SC.CV/376/2021
Before Our Lordships:
Ejembi Eko Justice of the Supreme Court of Nigeria
Mohammed Lawal Garba Justice of the Supreme Court of Nigeria
Abdu Aboki Justice of the Supreme Court of Nigeria
Tijjani Abubakar Justice of the Supreme Court of Nigeria
Emmanuel Akomaye Agim Justice of the Supreme Court of Nigeria
Between
1. ALL PROGRESSIVE CONGRESS (APC) 2. EDOBOR WILLIAMS APPELANT(S)
And
1. GODWIN NOGHEGHASE OBASEKI 2. PEOPLES DEMOCATIC PARTY (PDP) 3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) RESPONDENT(S)
RATIO
WHETHER OR NOT WHERE THERE IS NO APPEAL AGAINST A SPECIFIC FINDING OF FACT BY THE TRIAL COURT, THE FINDING REMAINS BINDING ON THE PARTIES
It is settled that where there is no appeal against specific finding of fact by the trial Court, the finding remain unassailable and is binding on the parties. It cannot be re-examined by this Court: ALAKIJA v. ABDULAI (1995) 6 NWLR (pt 552) 1; OPARA v. DOWEL SCHLUMBERGER (NIGERIA) LTD (2006) 15 NWLR (pt. 1002) 342; ARNALE v. SOKOTO LOCAL GOVERNMENT (2012) 2 NWLR (pt. 1292) 181; SCC (NIGERIA) LTD v. ANYA (2012) 9 NWLR (pt. 1305) 273; NWAZURIKE v. NWACHUKWU (2012) 3 NWLR (pt. 1342) 503; NWAOGU v. ATUMA (2013) 11 NWLR (pt. 1364) 117. PER AGIM, J.S.C.
WHETHER OR NOT ALLEGATIONS OF FORGERY OF A CERTIFICATE MUST BE PROVED BEYOND REASONABLE DOUBT
Being an assertion/allegation of forgery of a certificate, it is one that undoubtedly falls within the realm of criminality that by law; both statutory and procedural, has to be proved beyond reasonable doubt by dint of Section 135 (1) and (2) of the Evidence Act, 2011 as well as Re-Amadi v. State (1993) SCNJ, 68, Famuroti v. Agbeke (1991) 5NWLR (pt. 189) 1 SC, Buhari v. Obasanjo (2005) 7 SC (pt. 1) l, Aituma v. State (2006) All FWLR (pt. 318) 671, Audu v. INEC (No. 2) (2010) 13 NWLR (pt. 1212) 456 at 507, Uzoka v. FRN (2010) 2 NWLR (pt. 1177) 118, Akinkugbe v. Ewulum (2008) 6 MJSC, 134, CAN v. Nyala (2012) 1 1 MJSC, 1, Obi-Odu v. Duke (2006) All FWLR (pt. 337) 537. PER GARBA, J.S.C.
EMMANUEL AKOMAYE AGIM, J.S.C. (Delivering the Leading Judgment): This appeal No. SC/CV/376/2021 was commenced on 30-3-2021 when the appellant herein filed a notice of appeal against the judgment of the Court of Appeal in Appeal No. CA/A/71/2021 delivered on 18-3-2021 dismissing the applicant’s appeal to it against the judgment of the Federal High Court delivered on 9-1-2021 in suit No. FHC/B/CS/74/2020 and affirming the said judgment.
The notice of appeal contains 24 grounds for the appeal.
The 1st respondent to this appeal, on 31-3-2021 filed a notice of cross appeal against the said judgment of the Court of Appeal. The notice of Cross Appeal contains two grounds for the Cross Appeal.
In respect of the appeal, the following briefs were filed – appellant’s brief, 1st respondent’s brief, 2nd respondent’s brief and appellant’s replies to the 1st and 2nd respondent’s brief.
Learned counsel for the 3rd Cross-Respondent stated that the 3rd respondent filed no brief.
In respect of the cross appeal, the following briefs were filed – Cross-Appellant’s brief, 1st and 2nd Cross-Respondent’s brief and Cross-appellant’s reply brief.
The appellant’s brief raised the following issues for determination-
1. Whether on a proper consideration of the appellants’ pleadings, and the evidence led in support, the lower Court did not misconstrue the case of the appellants and thereby arrive at conclusions which are contrary to the case of the appellants against the respondents. Covers ground 1, 9 and 17.
2. Whether on a proper consideration of the appellants case as presented in the pleadings, supported by credible evidence and guided by applicable decisions of the Supreme Court, the lower Court was not wrong when it held that appellants did not prove their case. Covers grounds 2 3 4 5 6, 8, 10, 13, 16, 21, 23 and 24.
3. Whether having regard to settled rules of interpretation, the lower Court did not err by reading into Sections 31(5) and (6) of the Electoral Act, 2010 as amended what was not enacted therein, thus putting on the appellants a burden of proof not justified by the language of Section 31(5) and (6) of the Electoral Act, 2010 as amended. Covers ground 7.
4. Whether having regard to the wordings of Sections 31(5) of the Electoral Act, 2010 and Section 182(1)(j) of the 1999 Constitution as amended, the lower Court was right when it held that to prove the allegations against the 1st respondent, the appellants have to prove all elements of forgery and falsification of documents alleged. Covers grounds 6, 11 and 15.
5. Whether the lower Court was right when it held that the evidence of DW1 was not hearsay. Covers grounds 12, 14 and 18.
6. Whether the complaint of the appellants to the effect that the trial Court failed to consider the objection raised by the appellants against some of the documents tendered by the 1st respondent was properly addressed and resolved by the lower Court in the light of the circumstances of this case and the applicable law. Covers grounds 19 and 20.
7. Whether it was right and in keeping with the tenets of justice for the appellate lower Court to speculate and adduce its own reasons or grounds for the finding made by the trial Court which the Court failed to justify by reference to the pleadings and/or the evidence before the Court. Covers ground 22.
The 1st respondent’s brief raised for determination the following issues:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
- Whether the Court below misconceived the appellants’ case as set out in their Statement of Claim, misconceived the burden of proof applicable to Section 31(5) and (6) of the Electoral Act 2010 (as amended) and Section 182(1)(j) of the 1999 Constitution and thereby came to a wrong conclusion that the appellants did not prove their case. (Combination of appellants issues (1) — (iv) and (vii)) Grounds 1, 2, 3, 4, 5, 6, 9, 10, 11, 13, 15, 16, 17, 21, 22, 23 and 24).
2. Whether the Court below was right when it held that the evidence of DW1 was not hearsay. Grounds 12, 14 and 18.
3. Whether the Court below was right when it held that in the circumstances of this case the failure of the trial Court to rule on the appellants’ objection to the admissibility of some documents did not occasion any miscarriage of justice to the appellants. Grounds 19 and 20.
The 2nd respondent’s brief adopted and argued the issues raised for determination in the appellant’s brief.
The Cross-Appellant’s brief raised a sole issue for determination as follows:
Whether by the provisions of Section 285(10) of the Constitution of the Federal Republic of Nigeria 1999 (Fourth Alteration, No. 21) Act, 2017 the justices of the Court of Appeal were in error when they dismissed the cross-appellant’s motion on notice which challenged the competence of grounds of appeal in which the complaint of the 1st and 2nd Cross Respondents was that the trial High Court failed to consider and determine their case. (Grounds 1 and 2 of the Notice of Appeal).
The 1st and 2nd Cross-Respondent’s brief raised one issue for determination as follows:
Whether having regard to the provisions of Section 285(10), (11) & 12 of the Constitution of the Federal Republic of Nigeria, 1999 as amended the lower Court was not right in refusing the cross-appellants motion challenging grounds 1, 2, 3, 4, 10 and 11 of the 1st and 2nd cross-respondents’ notice of appeal? Covers grounds 1 and 2 of the Notice of Cross Appeal.
I will determine the main appeal first before I consider the Cross appeal.
I will determine this appeal on the basis of the issues raised for determination in the appellant’s brief.
I will determine all the issues in the appellant’s brief together as they all deal with the approach of the Courts to the evidence.
I have carefully read and considered the arguments in all the briefs on these issues.
Let me consider the argument of Learned SAN for the appellants that the trial Court and the Court of Appeal misconstrued the case presented by the appellants, set up and decided a case different from that presented by the appellants in their pleadings and evidence.
The argument of Learned SAN for the appellant that the appellants did not make any case that the 1st respondent forged any of his educational documents and that the finding of the trial Court that the 1st respondent did not forge any of his educational documents was completely extraneous to the case made by the appellant is contrary to the appellant’s pleading and evidence and is therefore not valid. The pleading and evidence show clearly that the case the appellant presented is that the information in 1st respondent’s INEC Form EC9 that he graduated from university of Ibadan in 1979 and that he worked with Afrinvest between 1994 and 2016 is false and that the 1st respondent’s educational certificates submitted along with his Form EC9 to the 3rd respondent are false and forged.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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In paragraph 14 of the statement of claim they pleaded that “the 1st defendant presented false/forged University of Ibadan Degree Certificate to the 3rd defendant on 29th June, 2020. Under a heading “Particulars of Falsehood/Forgery”, they pleaded the particulars of the falsehood/forgery in subparagraphs (1) to (xii). Paragraph 26 of the statement of claim also aver that the “1st defendant also presented a false/forged Advance Level WAEC Certificate/Testimonial to the 3rd defendant. The particulars of Falsehood/forgery, are pleaded in subparagraphs i to vi therein. Paragraph 28 (ii) of the statement of claim state that “the 1st defendant presented forged/false certificates in the form of the University Degree, Advanced Level WAEC and Testimonial from the institute of Continuing Education to the 3rd defendant in a bid to help his qualification to contest office.
In paragraph 29 of the statement of claim the appellants claimed for the following reliefs-
“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 CF 001 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 amended).
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 amended).
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 Provisions of Section 182(1)(j) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
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 and 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 Constitution Requirement in Section 182(1)(j) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) 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 19ths September, 2020 or on any other date that may be appointed for the purpose on the ground that 1st Defendant supplied false information on oath 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 amended)
11. 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 date that may be appointed for the purpose.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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- 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 ORDERS that the Honourable Court may deem fit to make in this circumstances.
The appellants elicited evidence through six witnesses whose testimonies in examination in chief in substance restated the facts pleaded in the statement of claim and tendered several documentary evidence to prove that the 1st respondent’s documents that accompanied his Form EC9 submitted to the 3rd respondent were forged or false. Therefore, the argument of Learned SAN that “the appellants made no allegation in their pleadings of forgery and/or falsification of documents against the 1st respondent” is wrong.
The Court of Appeal correctly affirmed the decision of the trial Court that the case presented by the appellants is that the copies of the 1st respondent’s educational certificates submitted to the 3rd respondent with his candidate Form EC9 were forged or false. The Court of Appeal was correct when it held that-
“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 appellants 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 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 appellant’s 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”.
Learned SAN for the appellants also argued that the Court of Appeal and the trial Court misunderstood the appellants’ case as challenging the qualification of the 1st respondent to be candidate in the election and that the Court of Appeal was wrong to hold that the appellant’s case is that the 1st respondent did not have the prerequisite constitutional and statutory qualification to contest the election. This argument is wrong having regard to the appellant’s pleadings. It is clear from the appellant’s pleading that this is part of the case they made. This is clear from paragraphs 19, 25, and 28 of the statement of claim. I reproduce them here for ease of reference as follows-
“19. The plaintiffs became aware of certain discrepancies after 1st Defendant was sponsored as candidate by 1st plaintiff to contest the Governorship Election for Edo State in September, 2016. Following the said sponsorship, 2nd Defendant and one Professor Edoba Omoregie filed Suit No: FHC/B/CS/125/2016 against the 1st and 3rd Defendants at the Federal High Court, Benin City in 2016. The suit challenged the candidacy of the 1st Defendant and sought his disqualification for giving false information on INEC Form CF 001 and non-fulfillment of the Constitutional requirement prescribed in Section 182(1) (h) of the Constitution of the Federal Republic of Nigeria 1999 (as altered).
25. The plaintiffs aver that apart from taking photographs of the displayed INEC Form EC9 and supporting documents, Plaintiffs thoroughly scrutinized them and found out that the INEC Form EC9 contained some false statements which directly relates to disqualification contained in the Constitution of the Federal Republic of Nigeria, 1999 (as altered) and the Electoral Act, 2010 (as amended).
28. The 1st Defendant lied on Oath in his INEC For 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
PARTICULARS
i) A person who presents a forged certificate to the Independent National Electoral Commission is disqualified by the provisions of 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 Education 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”.
In the light of the foregoing I hold that Court of Appeal and the trial Court correctly understood and construed the case presented by the appellants in their pleadings and evidence.
It is obvious that the appellants’ complains in issues nos. 2 to 7 in their brief result from their view that the trial Court and the Court of Appeal misconstrued the case presented by the appellants, set up and decided a case different from that presented by the appellants in their pleadings and evidence. This position is confirmed by the submission of Learned SAN for the appellant that “If the lower Court had not misconstrued the appellants’ case it would have found that on the evidence led by the appellants in support of their case and supported by the evidence extracted from the 1st respondent’s witnesses under cross-examination, the appellants established their case and ought to have been given judgment as will be shown anon.” Now that we have held that their said view is wrong, it follows that their complains in issues nos. 2 to 7 based on this erroneous view are now baseless and that the decision of the Court of Appeal affirming the decision of the trial Court that the appellants did not prove their case is correct. Therefore, there is no need considering those issues.
Be it as it is, let me, for whatever it is worth, still consider the issue of whether the Court of Appeal was right in affirming the decision of the trial Court that the appellants did not prove their case.
It was the appellants herein as plaintiffs that desired that the trial Court grant the reliefs they claimed for on the basis that the facts they assert in their pleadings exist and it is their case that will fail if they fail to adduce evidence to prove the existence of those facts. They can only secure the favourable Judgment they desire on the strength of their case as established by legal evidence and not on the weakness or absence of a defence. Therefore, the legal burden to prove the said facts upon which the success of their case depends rests squarely on them by virtue of S.s 131, 132 and 133 (1) and (2) of the Evidence Act 2011 which provide thusly –
131 (1) – Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.
132. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
133 (1) – In civil case, the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.
(2) If the party referred to in Subsection (1) of this Section adduces evidence which ought reasonably to satisfy the Court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced, and so on successively, until all the issues in the pleadings have been dealt with.
By virtue of the provisions of S. 133(2) of the Evidence Act 2011, the plaintiffs evidence must establish their case, before the evidential burden to rebut the case established by their evidence can shift to the defendants and if the plaintiffs’ evidence fail to prove their case, then the case collapses and must be dismissed.
The case presented by the appellants in their pleadings is that the information the 1st respondent gave in his INEC Form EC9 of 29-6-2020 that he obtained a degree certificate from the University of Ibadan is false as he did not obtain the said degree from the University of Ibadan in 1979, that the photocopy of the undated degree certificate signed by only the Vice Chancellor is forged, that the 1st respondent gave false information in INEC Form EC9 that he worked in Afrinvest Ltd from 1994 to 2014 and retired, that the A/Level WAEC Certificate dated June, 1976 and Testimonial from Institute of Continuing Education in Benin City stating that 1st respondent sat for Advance Level examination in May/June 1975 submitted with 1st respondent’s INEC Form EC9 are forged.
The main evidence relied on by the appellants to prove these assertions is the 1st respondent’s INEC Form CFOOI filled on 11-7-2016 (exhibit PL 11) and the educational credentials attached to it. 1st respondent had stated in the said Form CFOOI that he obtained his degree from University of Ibadan in 1976, that he worked with Afrinvest between 1994 and 2014. In Form EC9 he stated that he obtained his degree from University of Ibadan in 1976, that he worked with Afrinvest between 1994 and 2016. The Form CFOO1 of 2016 was accompanied by an undated degree certificate from University of Ibadan signed by only the Vice Chancellor. Form EC9 was accompanied by the dated degree certificate signed by the Vice Chancellor and Registrar. The appellants relied on the difference between the 1st respondent’s information in CFOO1 and his information in Form EC9 to assert that the information in Form EC9 is false. They also relied on the the photocopy of the University of Ibadan Degree Certificate that accompanied the 11-7-2016 Form CFOO1 to assert that the photocopy of the same degree certificate attached to the Form EC9 of 29-6-2020 is forged. The testimonies of PW1 to PW6 consist of opinions and observations on the content of copies of 1st respondent’s educational certificates that were submitted with his form EC9 to the 3rd respondent in 2020.
What is clear from the evidence elicited by the appellants is that they relied on the information in 1st respondent’s INEC FORM CF001 of 2016 (exhibit PL 11) to prove the falsity of the information in his INEC Form EC9 (exhibit PL. 10) that he obtained a degree from University of Ibadan in 1979 and that he worked with Afrinvest between 1994 to 2016. The information in exhibits PL. 11 and PL. 10 differ only on the year of graduation from University of Ibadan and the period 1st respondent worked at Afrinvest. Such differences may create doubt about the truth of the information in either exhibit PL. 10 or PL. 11. But they cannot be proof that the said information in the affidavit in exhibit P10 is false. Such proof would require evidence beyond a different information in a previous affidavit of the informant.
The kind of evidence required would depend on the information.
To prove that the information in exhibit PL. 10 that 1st respondent obtained a degree certificate from University of Ibadan in 1979 is false would require evidence from the said University showing that he did not attend the said University or did not obtain the said degree from the University in 1979 or at all. To prove that the information in exhibit P10 that 1st respondent worked with Afrinvest between 1994 and 2016 is false, would require evidence from Afrinvest showing that he worked there at a different period or did not work there at all. False information in INEC Form EC9, an affidavit, amounts to lying on oath or false oath. By virtue of S.31(1) and (2) of the Electoral Act 2010 as amended, the 3rd respondent was bound to receive the affidavit and the documents submitted by the 1st respondent as indicating that he has fulfilled all the constitutional requirements for election into the office of Governor of Edo State. Such a false declaration on oath to a public officer bound by law to receive it as evidence of the facts declared therein is no doubt a crime. Being a crime, the allegation of its commission must be proven beyond reasonable doubt. This Court had in Abubakar & Anor V INEC & Ors (2020) 12 NWLR (1737) 37 at 110 made this restatement. The crime is established once it is shown that the information is false. The nature of the information in issue in this case requires evidence of more than a previous inconsistent statement of the declarant to prove that the current information is false. Since the information on the year the 1st respondent obtained a bachelor degree from University of Ibadan is in the records of that University or in an original or primary copy of the said degree or school leaving testimonial issued by them to the graduate, only such original copy of the certificate or testimonial or a certified true copy of same or other documents issued by the University can be proof that the information is false. Equally, since the information concerning 1st respondent working at Afrinvest between 1994 and 2016 is in the record of the company, it is evidence of such records that can prove that the information that he worked there up to 2016 is false.
The appellants relied on the features or contents of the photocopy of the University of Ibadan Degree Certificate that accompanied INEC Form CFOOI (exhibit P. 11) in 2016 particularly the facts that it had no date and was signed by only the Vice Chancellor to show that the same University of Ibadan Degree Certificate that accompanied INEC Form EC9 in 2020 which is dated and signed by the Vice Chancellor and the Registrar of the University is forged or false. They also relied on differences between the photocopies of A/Level WAEC Certificate of June, 1976 and the Testimonial issued by the Institute of Continuing Education in Benin City on the subjects 1st respondent entered for and wrote in the Advance Level Examination and the year of the examination to prove that either of the two documents is forged.
Such differences create doubt or suspicion about the genuineness of the two documents, but the doubt or suspicion is of no moment without proof that either of them is forged. Forgery being a crime, allegation of its commission must be proved beyond reasonable doubt. S.135(1) of the Evidence Act 2011 provides that “If the commission of a crime by a party to any proceedings is directly in issue in any proceeding civil or criminal it must be proved beyond reasonable doubt.”
The basic evidence required to prove that the University degree certificate attached to INEC Form EC9 is forged is a disclaimer from the University of Ibadan that is said to have issued the certificate. The evidence required to prove that the A/Level WAEC Certificate attached to Form EC9 is forged is a disclaimer from WAEC that conducted the examination and issued the result and certificate. See the restatement of this law by this Court in Maihaja v. Gaidam (2017) LPELR – 42474 (SC) and Mohammed V Wammako (2018) All FWLR (Pt.937) 1608 at 1630. It is curious that the appellants did not produce evidence of any official disclaimer from the University of Ibadan of the degree certificate attached to the Form EC9 or any official disclaimer of the A Level WAEC Certificate by WAEC. Without evidence from the institution or body that is purported to have issued any certificate or other document stating that it did not issue the certificate or document or that any part of the certificate or document is not made by it, it would be idle and useless to contend that it is forged.
In the light of the foregoing, I hold that the Court of Appeal correctly affirmed the decision of the trial Court that the appellants did not prove their case by any standard of proof. The case of the appellants collapsed at the close of their evidence and there was no case for the defendants to rebut or defend.
The 1st defendant did not rest on the failure of the plaintiffs (appellants) to prove that any of the information in INEC Form EC9 is false and that any of the educational credentials attached to Form EC9 is forged. He proceeded to elicit evidence to explain the alleged apparent differences between the 1st respondent’s Form CFOO1 of 2016 and his Form EC9 of 2020 and the documents attached to each and show that no information in Form EC9 is false and that none of the 1st respondent’s educational credentials attached to Form EC9 is forged.
The 1st respondent tendered through DW1 the original copies of his June 1973 WAEC Certificate (exhibit D1) June 1976 Higher School Certificate issued by WAEC (exhibit D2) Bachelor of Arts Certificate issued by University of Ibadan (exhibit D4). He elicited evidence through DW1, DW2 and DW3 to explain that there are no actual differences between the photocopy of the degree certificate attached to Form CF001 in 2016 and the photocopy of the same certificate attached to Form EC9. DW1 who made the photocopies explained that the photocopier did not capture all the features or contents of the original degree certificate. Exhibits D1, D2, D3 and D4 were tendered to show that the 2016 photocopy did not capture all the features of the certificate because of how it was photocopied and the fact that the paper on which it was copied was smaller than the original degree certificate.
DW2 who is the Deputy Registrar (Legal) of the University identified exhibit D4 as the Original copy of the University of Ibadan Degree Certificate issued to the 1st respondent. He also explained the differences between the 2016 photocopy of the certificate and the original copy as an anomaly resulting from using a paper smaller than the certificate to photocopy the certificate.
The Court of Appeal correctly affirmed the finding of the trial Court that the reason for the minor variation or anomaly contained in the photocopy which was made the pivot of the appellants was adequately explained.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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In the light of the foregoing, I hold that the Court of Appeal correctly affirmed the decision of the trial Court that the appellants did not prove their case.
In the light of the above determinations, no useful purpose would be served considering the other issues and even the cross-appeal.
On the whole this appeal fails as it lacks merit. It is accordingly dismissed.
The cross- appeal having become academic is hereby struck out. The appellants shall pay costs of one million naira to the 1st respondent.
EJEMBI EKO, J.S.C.: The judgment just delivered by my learned brother, EMMANUEL AKOMAYE AGIM, JSC, which I had the privilege of reading in draft, represents my views in the appeal.
The Appellants, represented by an array of Senior Advocates of Nigeria, filed a total of 24 grounds of appeal. Not less than 20 of those grounds, ordinarily, require leave first sought and obtained to be competent – they being grounds of pure facts and/or mixed law and facts. The Appellants should have been guided by Section 233(2) & (3) of the 1999 Constitution, as amended.
The most germane issue arising from the 24 grounds of appeal is:
whether the lower Court misconceived the appellants’ case as set out in their statement of claim, misconceived the burden of proof applicable to Section 35(5) and (6) of the Electoral Act, 2010 (as amended) and Section 182(1)(j) of the 1999 Constitution and thereby came to a wrong conclusion that the appellants did not prove their case?
The fulcrum of the Appellants’ case, as pleaded in their Statement of Claim and the reliefs sought, was about the 1st Respondent’s
i. presentation of false educational documents; and
ii. presentation of forged University of Ibadan graduation certificate
In accordance with Section 31(6) of the Electoral Act —
If the Court determines that any information contained in the affidavit or any document submitted by (the) candidate is false, the Court shall issue an order disqualifying the candidate from contesting the election.
The disqualification follows the proof beyond reasonable doubt that the candidate had presented a false/forged document in aid of his assertion that he was qualified to contest the election. Since falsification and/or forgery of a document are criminal offences; the standard of proof of that allegation of criminality is one of proof beyond reasonable doubt: Section 135 of the Evidence Act, 2011; MAUNE v. ABDUL (2001) 4 NWLR (pt. 702) 95; AGWASIM v. EJIVUMERWEHAYE (2001) 9 NWLR (pt. 718) 398. And of course, it is the duty of the plaintiff to prove every averment in his pleadings, particularly where issues are duly joined on such pleadings: OMOBORIOWO v. AJASIN (1983) 10 SC 178. Where no satisfactory evidence was led in proof of any fact in issue; the trial Court is entitled to dismiss such issue: OMOBORIOWO v. AJASIN (supra).
In the instant case, the trial Court had found that the Appellants’ case of falsification/forgery of educational documents, including the 1st Respondent’s University of Ibadan graduation certificate, was purely speculative and unestablished by the required standard of proof. By that finding the defence owed no further evidential burden of rebuttal. The defence however offered evidence very devastating to the case of the Appellants as plaintiffs.
While the Appellants called no evidence from the authorities that issued the disputed documents paraded by the 1st Respondent; evidence was called by the defence from those institutions or authorities affirming the authenticity of those educational documents. In addition, the Appellants did not produce the originals of the documents allegedly falsified or forged. They left everything to speculation on mere assertion without corresponding proof of the assertion. Section 131 of the Evidence Act obligated the Appellants, in the circumstance, to prove the existence of the facts of falsification or forgery of the 1st Respondent’s educational documents. They totally failed to discharge the burden.
This is an appeal against concurrent findings of fact, which this Court will rarely disturb unless upon special circumstances shown by the Appellants. The Appellants had abdicated this burden in this appeal. They failed to specifically challenge or attack frontally the concurrent findings of fact that they failed woefully to prove the criminal allegation that the 1st Respondent falsified/forged his educational documents. In this appeal, as in the appeal at the lower Court, they posit that the two Courts below had misconceived their case at the trial Court vide their Statement of Claim. At page 7, paragraph 4.6 of the Appellants’ Brief, the Appellants, abandoning and disavowing their case at the trial Court, had contumaciously stated that —
In their pleadings at pages 11 to 28, the appellants did not make any case that the 1st respondent forged any of his educational documents
in order to support their argument that the Courts below misconceived their case at the trial Court. Regrettably, this is a lie told by a very eminent Senior Advocate of Nigeria who settled the Appellants’ Brief under his hand.
The two Courts did not misconceive the case of the Appellants, as Plaintiffs. Their case, as pleaded in their Statement of Claim, was that the 1st Respondent should be disqualified, pursuant to Section 31(5) & (6) of the Electoral Act, 2010 (as amended) and Section 182(1)(j) of the 1999 Constitution, as amended, on the grounds that he (the 1st Respondent) had falsified and/or forged the educational documents, including his University of Ibadan graduation certificate. The finding of fact of the trial Court that the Appellants had speculated on that assertion and that they did not prove that fundamental super structure on which their case was premised and erected was fatal to their case. There being no attack or challenge mounted against those specific adverse findings of fact by the two Courts below those specific adverse findings of fact remain binding and subsisting between the parties in this appeal. Abiru, JCA, in BELLO GARBA BELLO v. THE STATE (2014) LPELR-41075 (CA) had stated, and I endorse the statement, to wit —
It is settled that where there is no appeal against specific finding of fact by the trial Court, the finding remain unassailable and is binding on the parties. It cannot be re-examined by this Court: ALAKIJA v. ABDULAI (1995) 6 NWLR (pt 552) 1; OPARA v. DOWEL SCHLUMBERGER (NIGERIA) LTD (2006) 15 NWLR (pt. 1002) 342; ARNALE v. SOKOTO LOCAL GOVERNMENT (2012) 2 NWLR (pt. 1292) 181; SCC (NIGERIA) LTD v. ANYA (2012) 9 NWLR (pt. 1305) 273; NWAZURIKE v. NWACHUKWU (2012) 3 NWLR (pt. 1342) 503; NWAOGU v. ATUMA (2013) 11 NWLR (pt. 1364) 117.
I have no cause to disturb the concurrent findings of fact, very adverse to the Appellants, on the core facts in issue at the trial Court. The Appellants failed woefully to establish that the 1st Respondent falsified/forged the educational documents presented to the 3rd Respondent (INEC). It is, therefore, my firm conclusion that the two Courts below were properly seised of the facts in issue as pleaded in the Statement of Claim and that they did not misconceive the case of the Appellants at the trial Court.
I therefore resolve against the Appellants the issue – whether the Courts below misconceived the case the Appellants presented at the trial Court vide their Statement of Claim. In the circumstance of this resolution, other issues in this appeal are now purely academic.
This appeal should never have been brought in the first place. It is completely frivolous, and clear case of abuse of process. Learned Senior Advocates, being not only officers of the Court but supposedly noble and worthy knights in the temple of justice should be more silky in the administration of justice, particularly in election or pre-election disputes. I will, at any time, hate to recall the antonyms of the word “silky” in relation to the manner they conduct themselves in the Court. A baseless and frivolous categorization of the political leaders as criminals has its negative reciprocal bearing on the total image of the Nation.
The appeal, lacking in substance, is hereby dismissed in its entirety as my learned brother, EMMANUEL AKOMAYE AGIM, JSC, did in the judgment just delivered. All orders made in the said judgment are hereby endorsed and adopted by me.
MOHAMMED LAWAL GARBA, J.S.C.: I have had a preview of the Lead Judgment written by my Learned Brother, E. A. Agim, JSC, in this appeal and it represents the views expressed and the conclusion reached at the conference of the Hon. Justices on the appeal.
I would like to emphasize that two (2) crucial questions or issues call for decision in the appeal from the grounds contained on the Notice of Appeal as follows:-
1. Whether the lower Court, in fact, or in law, misconceived the case of the Appellants as presented in the statement of claim and the reliefs sought from the trial Court and
2. Whether, if the answer to question or issue I were to be in the affirmative, the Appellants had proved the case presented before the trial Court as required by the law to be entitled to judgment on the totality of the evidence placed before that Court.
These issues or questions have been adequately considered and dealt with in the lead judgment in line with the facts pleaded and relied on as the basis or foundation of the action as well as the reliefs sought by the Appellants against the 1st Respondent, specifically. The relevant and material facts contained in the Appellants’ statement of claim upon which the case presented before the trial Court against the 1st Respondent was essentially predicated, are in paragraphs 8, 9, 10, 11, 12, 13, 14, 26 and 28 of the statement of claim.
It is expedient that the facts speak for themselves and here they are:
“8. The plaintiffs aver that 1st Defendant submitted the said INEC Form EC9 to the 3rd Defendant on 29th June, 2020 together with photocopies of the relevant documents, including the following; statutory Declaration of Age of 20.01.76, WAEC A/Level Certificate of June, 1976, WAEC O/Level Certificate of June, 1973, Testimonial from the Institute of Continuing Education of 25/09/75 and undated Degree Certificate from the University of Ibadan. The plaintiffs shall rely on these documents and other documents attached to 1st Defendant’s INEC Form EC9 sworn to on 29th June, 2020 during trial.
9. The Plaintiff avers that the 1st Defendant stated in the column for Educational Qualifications of INEC Form EC9 on 29th June, 2020 and he obtained O/Level West African School Certificate in 1973 and a University of Ibadan BA (Hons) Degree in Classical Studies in 1979.
10. The plaintiff averts 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 basis 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 and 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 CF 001, 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 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 Egbosa 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 CF 001 sworn to on 11th July, 2016 and the affidavit sworn to by the 1st Defendant on 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.
The Plaintiffs shall contend during trial that the 3rd Defendant received the 1st Defendant’s INEC Form CF 001 and believed the contents to be true and on that basis, 1st Defendant was listed as a candidates in that election which he won on the platform of the 1st Plaintiff.
12. The Plaintiffs aver that when 1st Defendant was filling out INEC Form EC9 in 2020, he stated that he obtained a Degree from the University of Ibadan in 1979 contrary to what he filled out on the equivalent or the same INEC in 2016 and supported this claim with a photocopy of a Degree Certificate from University of Ibadan without a date.
13. Plaintiffs aver that given the information disclosed on 1st Defendant’s Form CF 001 of 11th July, 2016 and his purported Affidavit of 7/06/16 with respect to the date of obtaining a degree, the 1st Defendant gave false information in his INEC Form EC9 of 29th June, 2020 wherein he stated that he obtained his first degree from the University of Ibadan in 1979 in Column ‘C” of the said Form EC9 contrary to the provisions of Section 31(5) and (6) of the Electoral Act. 2010 (as amended). Both Affidavit which are contradictory in material particulars co-exist side by side till date.
14. The Plaintiffs aver that the 1st Defendant presented false/forged University of Ibadan Degree Certificate to the 3rd Defendant on 29th June, 2020.
PARTICULARS OF FALSEHOOD/FORGERY
i) Contrary to the date stated in INEC Form CF 001 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 July, 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 and 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 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 publication 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 inform 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 certificate of academic certificates in University of Ibadan. Plaintiffs would rely on the standard operative procedure of the Examinations, Records and Administrative Data processing Division of the University of Ibadan website 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 standard operation procedure of the said University.
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.
PARTICULARS
i) A person who presents a forged certificate to the Independent National Electoral Commission is disqualified by the provisions of 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, Advance 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 indeed qualified to contest for the office of Governor of Edo State.”
In brief, the real and genuine complaint or grievance of the Appellants against the 1st Respondent disclosed in/by these averments or assertions of facts is that the 1st Respondent, as a candidate for the election in question, gave false information in the Affidavit he submitted to the 3rd Respondent and also submitted false/forged documents for the purpose of the said election contrary to the provisions of Section 31(5) and (6) of the Electoral Act (E.A.). Also, that the 1st Respondent presented forged/false certificates to the 3rd Respondent for the purpose of the said election contrary to the provision of Section 182 (1) (j) of the 1999 Constitution (as amended).
The indisputable case presented by the facts in the Appellants’ statement of claim against the 1st Respondent was that the 1st Respondent gave false information, submitted false/forged documents and presented forged/false certificates to the 3rd Respondent in proof and in aid of his qualification to contest the election in question. It is beyond reasonable and legally viable arguments that the case of the Appellants against the Appellant was for giving false information, submission of false/forged documents and presenting forged/false certificates and so one purely and completely based on allegations of falsification of information and forging of documents or certificates relating to the statutory and constitutional requirements for the educational qualification of a candidate to contest election in to the office of a Governor of a state in Nigeria. Although, the Appellants did not directly and frontally challenged the educational qualification of the 1st Respondent to contest the election in question as stipulated in the provisions of Section 177(c) of the Constitution, yet they sought the disqualification of the 1st Respondent on the basis of the provisions of Section 182 (1) (j) of the same Constitution for alleged presentation of “forged certificate” to the 3rd Respondent. This is manifest and expressly sought in relief 3 of paragraph 29 of the statement of claim which prayed for:-
“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).”
Being an assertion/allegation of forgery of a certificate, it is one that undoubtedly falls within the realm of criminality that by law; both statutory and procedural, has to be proved beyond reasonable doubt by dint of Section 135 (1) and (2) of the Evidence Act, 2011 as well as Re-Amadi v. State (1993) SCNJ, 68, Famuroti v. Agbeke (1991) 5NWLR (pt. 189) 1 SC, Buhari v. Obasanjo (2005) 7 SC (pt. 1) l, Aituma v. State (2006) All FWLR (pt. 318) 671, Audu v. INEC (No. 2) (2010) 13 NWLR (pt. 1212) 456 at 507, Uzoka v. FRN (2010) 2 NWLR (pt. 1177) 118, Akinkugbe v. Ewulum (2008) 6 MJSC, 134, CAN v. Nyala (2012) 1 1 MJSC, 1, Obi-Odu v. Duke (2006) All FWLR (pt. 337) 537.
The Appellants also sought for the disqualification of the 1st Respondent for alleged giving false information and submission of false/forged documents to the 3rd Respondent under the provisions of Section 31 (5) and (6) of the Electoral Act. This is borne out by the reliefs 1, 6 and 7 of paragraph 29 of the statement of claim which sought for:-
“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 CF 001 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.
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 schedule for 19th September, 2020 or on any other date that may be appointed for the purpose.”
The facts upon which these reliefs were predicated all alleged falsification and forgery of information and documents submitted to the 3rd Respondent by the Respondent which have to be proved beyond reasonable doubt, as shown above. See in addition, Nwobodo v. Onoh (1984) 1 SCNLR 1, El-Tijjani v. Saidu (1993) 1 NWLR (pt. 268) 246 at 256, Dantiye v. Kanya (1990) 44 NWLR (pt. 1130) 13, ACN v. Lamido (2012) 8 NWLR (pt. 1303) 560 at 582.
In order for the Appellants to succeed in the proof of their allegations of giving false information and submission of false documents to the 3rd Respondent by the 1st Respondent and to be entitled to the grant of the relief for the disqualification of the 1st Respondent to contest the election in question, they had the burden and bore the onus of proving the falsification and/or forgery of the information and document given and submitted by the 1st Respondent to the 3rd Respondent for the purpose of the election, beyond reasonable doubt. They must in addition, thereby demonstrate that the 1st Respondent’s indication in the Form submitted to the 3rd Respondent in accordance with the provision of Section 31 (2) of the Evidence Act, that he had fulfilled all the constitutional requirements for the election into the office of the Governor of Edo State, was false.
In the premises of all I have said above, the case presented by the Appellants against the Respondent in their pleadings before the trial Court was one which, without interpolation, questioned and challenged the truth, genuineness and authenticity of the information, documents and certificates on the educational qualifications of the 1st Respondent to contest the election as prescribed by the Constitution and the Electoral Act.
In that regard, both the trial Court and the lower Court correctly and rightly comprehended, conceived and properly appreciated the pith and substance of the Appellants’ case against the 1st Respondent contrary to the assertions in the Appellants’ Brief.
I therefore agree that the two (2) lower Courts did not misconceive the case presented by the
Appellants before the trial Court in their pleadings.
Similarly, the evidence adduced by the Appellants in proof of the case they presented before the trial Court fell far short of the requirements of the law on the proof the allegations made against the 1st Respondent, to even warrant a defence from him which however, showed how baseless the allegations by the Appellants against the 1st Respondent were, legally and in law, particularly when the case presented before the trial Court was abandoned and disowned before lower Court and in this appeal. The abandonment of the case put up in the pleadings of the Appellants in both the lower Court and in this appeal took it outside of and beyond the principles stated by this Court on the application of the provisions of Section 31(5) and (6) of the Electoral Act in the cases of Modibbo v. Usman (2020) 3 NWLR (pt. 1712) 470 at 509 and PDP v. Biobarakuma Degi-Eremienyo (2020) 305 LRCN, 1 (both cited in the Appellants’ Reply Brief to the 1st Respondent Brief). In both of these cases, the challenge was on the genuity and authenticity of the documents and/or certificates presented by the candidates to the 3rd Respondent for the respective elections in question on various grounds including forgery and falsification of names and schools attended and certificates obtained.
The facts of these cases are therefore, different and the evidence adduced by the parties therein in proof thereof was different to render them inapplicable to the case the Appellants insisted in their arguments to be what was presented before the trial Court. The application of any principles of law laid down, enunciated, stated and restated (repeatedly) in earlier or previous cases, depends largely on the peculiar facts and circumstances that unveiled and are disclosed in later cases without which such principles cannot be applied in a vacuum. The Courts do not apply the same set of principles on cases having different factual situations unless such cases are on all fours with one another and it is the facts of a case that frame issues to be decided on which principles of law would/may be laid to be applicable to later cases in which the facts are the same or substantially similar. In the famous case of Fawehinmi v. NBA (No. 2) (1981) 2 NWLR (pt. 105) 558 at 650, Oputa, JSC, in his usual erudition and proficiency had put the position thus:-
“It is good to call the Court’s attention to its pronouncements in a previous case. Under system (which we inherited from England and from Common Law) the formulation of general principles had not preceded decisions. Our case law is the law of the practitioner rather than the law of the philosopher. Decisions have drawn their inspiration and strength from the very facts which framed the issue for decision.”
See also Babatunde v. PAS. & T.A. Ltd. (2007) 13 NWLR (pt. 1050) 113, Onyia v. State (2008) 7 – 12, 120, Osakue v. F.C.E.T. Asaba (2010) 10 NWLR (Pt. 1201) 1, (2010) 42 NSCQR, 981, Obasi Bros. Co. Ltd. v. M. B.A. laid. (‘2005) 9 NWLR (pt. 929) 117, Ugwu v. Ararume (2007) 12 N WLR (pt. 1048) 36, on the application of previous decisions to later cases by the Court. With the Appellants persistently maintaining in their arguments before the lower Court and in this appeal that they did not and are not questioning and challenging the authenticity and genuineness of the documents and certificates presented by the 1st Respondent to the 3rd Respondent for the purpose of the election in question, it will be a mirage and intriguing to know how the allegations of giving false information and documents under Section 31(5) and (6) of the Electoral Act and presentation of forged certificates under Section 182 (1) (j) of the Constitution can be proved at all, let alone beyond reasonable doubt as required by law.
I must say that the Appellants completely “took their eyes off the ball” in the presentation of their case against the 1st Respondent at the trial Court, lower Court. and in this appeal.
I therefore agree with the lead judgment that the lower Court was right to have held that the Appellants did not prove their case as required by law, to have dismissed the Appellants’ appeal and to have affirmed the decision by the trial Court.
I also agree that the decision in the main appeal, has, effectively and for all practical purposes, overtaken and rendered the cross appeal of no useful utilitarian value or worth to the cross Appellants to warrant a consideration on the merit by the Court.
I join the lead judgment in dismissing both the main appeal for lacking in merit and the cross appeal for being of rendered academic by the decision on the main appeal.
I also abide by the order on costs made in the lead judgment.
ABDU ABOKI, J.S.C.: I have before now, read a draft of the Lead Judgment just delivered by My Learned Brother, EMMANUEL AKOMAYE AGIM, JSC. I agree with his reasoning and conclusion that this appeal lacks merit and ought to be dismissed.
This appeal is against the judgment of the Court of Appeal, sitting at Abuja, delivered on the 18th of March, 2021.
The facts of this case, as can be gleaned from the Records before this Court, is that the Appellants herein, vide a Writ of Summons and Statement of Claim filed on the 14th day of July 2020, instituted an action against the Respondents, before the Federal High Court sitting at Benin City. The suit was later transferred to the Federal High Court, holden at Abuja. The Appellants claimed against the Respondents as follows:
1. A DECLARATION that the 1st Defendant’s INEC Form EC9 at Column “C” thereof, sworn to on the 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 CF 001 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 in 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 the 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 forged/false certificate to the Independent and National Electoral Commission contrary to the provisions of Section 182(1)(J) of the CFRN 1999 as amended.
4. A DECLARATION that the 1st Defendant’s presentation of Advanced Level WAEC Certificate dated June, 1976 which showed that 1st Defendant sat for examination in subjects materially different from those shown in the Testimonial of the Institute of Continuing Education, of September 1975, where the 1st Defendant was a student and from where he purportedly wrote the said examination amounts to presentation of forged/false certificate, to the INEC, contrary to the provisions of Section 182(1)(J) of the CFRN 1999, as amended.
IN THE ALTERNATIVE
5. 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 the 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, contrary to the provisions of Section 182(1)(j) of the Constitution of the Federal Republic of Nigeria, 1999, as amended.
6. A DECLARATION that the 1st Defendant is disqualified from contesting election to the Office of Governor of Edo State for non-fulfilment of the Constitution Requirement in Section 182(1)(j) of the CFRN, 1999, as amended and upon presenting false/forged Certificate to the INEC 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 the 3rd Defendant contrary to Section 31(5) and (6) of the Electoral Act, 2010, as amended and Section 182(1)(j) of the CFRN 1999, as amended, is not entitled to participate in the Election scheduled for the 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 the 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 the 1st Defendant supplied false information on oath to the 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-fulfilment of the Constitutional requirement in Section 182(1)(j) of the CFRN 1999, as amended.
11. 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 to the 3rd Defendant to contest election to the Office of Governor of Edo State scheduled for the 19th September, 2020, or on any other date 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 the 1st Defendant in respect of the election to the Office of the 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 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. AND OTHER ORDER OR ORDERS that the Honourable Court may deem fit to make in this circumstances.
The central issues raised in the Appellants’ case are:
(i) That the 1st Respondent submitted false documents to the 3rd Respondent (INEC) along with his Form EC9, the Affidavit in support of Personal Particulars of the 1st Respondent, which was contrary to Section 31(5) and (6) of the Electoral Act, 2010, as amended.
(ii) That the 1st Respondent presented a forged Degree Certificate to the 3rd Respondent (INEC) along with Form EC9 contrary to Section 182(1)(j) of the CFRN 1999, as amended.
In its judgment, the trial Court dismissed the case of the Appellant.
Aggrieved, the Appellant appealed, albeit unsuccessfully to the Court below.
After its consideration of the case of parties on both sides, the Court below dismissed the Appellants’ appeal and affirmed the decision of the trial Court.
The Appellants are still aggrieved, hence, their further appeal to this Court. The crux of their appeal is that the Court below erroneously misconstrued the Appellants’ case, and thereby came to the wrong conclusion that they failed to adduce sufficient evidence in proof of their case.
They presented the following issues for this Court’s determination, namely:
1. Whether on a proper consideration of the Appellants’ pleadings, and the evidence led in support, the lower Court did not misconstrue the case of the Appellants and thereby arrive at conclusions which are contrary to the case of the Appellants against the Respondents?
2. Whether on a proper consideration of the Appellants’ case, as presented in the pleadings, supported by credible evidence and guided by the applicable decisions of the Supreme Court, the lower Court was not wrong when it held that the Appellants did not prove their case?
3. Whether having regard to settled rules of interpretation, the lower Court did not err by reading into Sections 31(5) and (6) of the Electoral Act, 2010, as amended, what was not enacted therein, thus putting on the Appellants, a burden of proof not justified by the language of Section 31(5) and (6) of the of the Electoral Act, 2010, as amended?
4. Whether having regard to the wordings of Section 31(5) and (6) of the Electoral Act, 2010, as amended, and Section 182(1)(j) of the CFRN 1999, as amended, the lower Court was right when it held that to prove the allegations against the 1st Respondent, the Appellants have to prove all elements of forgery and falsification of documents alleged?
5. Whether the lower Court was right when it held that the evidence of DW1 was not hearsay?
6. Whether the complaint of the Appellants to the effect that the trial Court failed to consider the objection raised by the Appellants against some of the documents tendered by the 1st Respondent was properly addressed and resolved by the lower Court in the light the circumstances of this case and the applicable law?
7. Whether it was right and in keeping with the tenets of justice for appellate lower Court to speculate and adduce its own reasons or grounds for the findings made by the trial Court which the Court failed to justify by reference to pleadings and/or the evidence before the Court?
The Respondents are however of the opinion that the two Courts below were right in their findings and rightly dismissed the Appellants’ case.
The 1st Respondent distilled the following three issues. They are:
1. Whether the Court below misconceived the Appellants’ case as set out in their Statement of Claim, misconceived the burden of proof applicable to Section 31(5) and (6) of the Electoral Act, 2010, as amended and Section 182(1)(j) of the CFRN 1999 and thereby came to a wrong conclusion that the Appellants did not prove their case?
2. Whether the Court below was right when it held that the evidence of DW1 was not hearsay?
3. Whether the Court below was right when it held that in the circumstances of this case, the failure of the trial Court to rule on the Appellants’ objection to the admissibility of some documents did not occasion any miscarriage of justice to the Appellants?
The 2nd Respondent adopted the issues as formulated by the Appellants.
The Cross-Appellant’s brief raise a sole issue for determination, to wit:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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“Whether by the provisions of Section 285(10) of the CFRN 1999 (Fourth Alteration, No 21) Act, 2017, the Justices of the Court if Appeal were in error when they dismissed the Cross-Appellant’s motion on notice which challenged the competence of the grounds of appeal in which the complaint of the 1st and 2nd Cross-Respondents was that the trial High Court failed to consider and determine their case?”
The 1st and 2nd Cross-Respondents’ brief also raised a sole issue for determination, that is:
“Whether having regard to the provisions of Section 285(10), (11), and (12) of the CFRN 1999, as amended, the lower Court was not right in refusing the Cross-Appellants’ motion challenging grounds 1, 2, 3, 4, 10, and 11 of the 1st and 2nd Cross-Respondents’ notice of appeal?”
The kernel of this appeal, in the main, is whether the two lower Courts misconstrued the case presented by the Appellants, set up and decided a case different from that presented by the Appellants in their pleadings and evidence.
My learned brother has comprehensively dealt with all the issues that arose for determination. I will however add a few words of mine in reiteration of the well-considered lead judgment.
The summary of the Appellants’ case, in my view, is that the 1st Respondent presented forged/false information to the 3rd Respondent, in a bid to aid his qualification to contest office. In paragraph 14 of the Statement of Claim, the Appellants pleaded that the 1st Defendant presented false/forged University of Ibadan Degree Certificate to the 3rd Defendant on 29th June, 2020. Under a heading “Particulars of Falsehood/Forgery” they pleaded the particulars of the falsehood/forgery in sub-paragraphs (i) to (xii). Paragraph 26 of the Statement of Claim also averred that the 1st Defendant also presented a false/forged Advance Level WAEC Certificate/Testimonial to the 3rd Defendant. The particulars of Falsehood/Forgery are pleaded in sub-paragraphs (i) — (vi) therein. Paragraph 28(ii) of the Statement of Claim stated that the 1st Defendant presented forged/false certificates in the form of University Degree, Advanced Level WAEC and Testimonial from the Institute of Continuing Education to the 3rd Defendant in a bid to help his qualification to contest office.
False information in INEC Form EC9 which is an affidavit, amounts to lying on oath and is invariably, a crime. Being a crime, its commission must be proven beyond reasonable doubt. Was this onus discharged by the Appellants, herein?
PW1 and PW5 under cross-examination by the 2nd Respondent’s counsel told the Court that the Appellant’s claim of forgery is based on incomplete photocopies of the 1st Respondent’s Bachelor of Arts Degree Certificate issued by the University of Ibadan, particularly the photocopy attached to his Form EC9 of 2020, tendered as Exhibits PL2 and PL10. (See pages 1319 and 1370 of the Records).
The 1st Respondent through the DW1 tendered Exhibit D4 which is the original certificate issued to him by the University of Ibadan. The Appellants did not tender any other original certificate that is in contra distinction from Exhibit D4.
The authorities of the University of Ibadan through DW2, confirmed Exhibit D4 as the original certificate issued to the 1st Respondent by the University. (See pages 1125-1128 and 1394-1396 of the Records).
The 1st Respondent, through DW1 explained and demonstrated to the Court under cross-examination by the 2nd Respondent’s counsel at Pages 1394-1396 of the Record that the photocopy relied on by the Appellants to establish against the 1st Respondent is indeed a photocopy of the original (Exhibit D4).
DW2 is the Deputy Registrar, (Legal) of the University of Ibadan. During cross-examination, he told the Court that the said document was not forged but an incomplete photocopy of Exhibit D4. He explained that the date of issuance, the Registrar’s signature and part of the Vice-Chancellor’s signature were not captured by the photocopying machine because it was photocopied into an A4 Paper which is smaller in size than Exhibit D4.
As stated in the lead judgment of my learned brother, the case presented by the Appellants in their pleadings is that the information the 1st Respondent gave in his INEC Form EC9 of 29-6-2020 that he obtained a Degree Certificate from the University of Ibadan is false as he did not obtain the said degree from the University of Ibadan in 1979; that the photocopy of the updated Degree Certificate signed only by the Vice-Chancellor is forged; that the 1st Respondent gave false information in INEC Form EC9 that he worked in Afrinvest Ltd from 1994 to 2014 and retired; that the A/Level WAEC Certificate dated June, 1976, and Testimonial from Institute of Continuing Education in Benin City stating that the 1st Respondent sat for Advance Level Examination in May/June 1975, submitted with the 1st Respondent’s INEC Form EC9, are forged. The Appellants relied on the difference between the 1st Respondent’s information in CF001 and his information in Form EC9 to assert that the contradicting information in Form EC9 is false. They also relied on the difference between the photocopy of the University of Ibadan Degree Certificate that accompanied the 11-7-2016 and the photocopy attached to Form EC9 of 29-6-2020 to assert that the Degree Certificate is forged.
The onus and standard of proof required under the Evidence Act and the Constitution is for the Appellant to prove the information that was false and the forgery committed, beyond reasonable doubt. See Section 133(2) of the Evidence Act, 2011, as amended.
The forged documents and their originals must be produced in order to discern which are original or authentic certificates and how they were forged. Failure of the Appellants to call evidence from the institution that issued the Certificate and the proof of particulars of forgery committed on the Certificate and false information passed to the 3rd Respondent (INEC) as pleaded by them, was fatal to the case of the Appellants.
At page 1462 of the Record, the trial Court held that:
“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 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 Plaintiff 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. What played out in this case is that the Plaintiffs only relied on the photocopy of the 1st Defendant’s Certificate 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 explanation of PW1, PW3 PW4 and PW6 to the effect that, when an original document of a foolscap is photocopied on A4 size paper, some portions of the original document could be cut off, unless the photocopier machine is adjusted to the level of the A4 size paper for all the information in the original to be captured.”
The Court below did not fault the findings of the trial Court. In support of the stance of the trial Court, the Court below held inter alia:
“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 CRN 1999, as amended, made against the 1st Respondent. all the witnesses hammered on was that the photocopy of the Degree Certificate the 1st Respondent claimed to have obtained from the 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 witnesses from any of the Educational Institutions the 1st Respondent stated in FORM EC9 to have attended and which issued the Certificates in the 1st Respondent’s favour, in order to debunk the originality or authenticity of the Certificates of 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 and I have no doubt in my mind that the findings of the lower Court were apt and unassailable.”
(See pages 1695 — 1696 of the Record)
Now, Section 31(5) and (6) of the Electoral Act, 2010, as amended provides as follows:
(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 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.
Furthermore, Section 182(1)(j) of the CFRN 1999, as amended, provides that:
182. (1)
No person shall be qualified for election to the office of Governor of a State if-
(j) he has presented a forged certificate to the independent National Electoral Commission.
I do not agree that the two Courts below misconstrued the case made out by the Appellants. Their case is as made out in paragraphs 19, 25-28 of the Statement of Claim, alleging that the 1st Respondent presented forged certificates and gave false information to the 3rd Respondent (INEC) contrary to Section 31(5) and (6) of the Electoral Act, 2010, as amended and Section 182(1)(j) of the CFRN 1999, as amended.
The Court below captured the essence of the Appellants’ case when it opined that:
“The basic thing the Appellants are contending is that the 1st Respondent was not qualified to contest the Gubernatorial Election in Edo State in 2020 because he had no requisite Constitutional and Statutory qualifications to contest the election.”
(See page 1689 of the Record)
The Court below then held that the allegations of forgery and giving false information on oath, being allegations of crime, their commission must be proved beyond reasonable doubt. I agree.
In the case of Atiku Abubakar & Anor v. INEC & Ors (2020) 12 NWLR (PT 1737) 37 at 110, this Court, per I.T. MUHAMMAD ON, held thus:
“Let it be clearly stated 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 allegations, they must go further to lead credible evidence to prove such allegations.”
I endorse the above dictum of the Honourable CJN, and adopt it as mine. Having failed to establish by credible evidence the allegations of forgery and giving of false information, against the 1st Respondent, I am of the firm view that the Court below was right in dismissing the case of the Appellants.
It is for this, and the fuller reasons postulated by my learned brother, EMMANUEL AKOMAYE AGIM, JSC, that I too adjudge this appeal to be unmeritorious. It is hereby dismissed by me.
I also agree with my learned brother that the Cross-Appeal has become otiose and academic. No useful purpose will be served in delving into it.
I abide by all the orders made in the lead judgment.
TIJJANI ABUBAKAR, J.S.C.: This appeal emanated from the judgment of the Court of Appeal CA/71/2021 delivered on the 18th day of March, 2021, wherein the Appellants’ appeal against the judgment of the Federal High Court delivered on the 9th day of January, 2021, in Suit No. FHC/B/CS/74/2020 was dismissed.
The issues that concreted the foundation of the suit from the onset are that, the 1st Respondent submitted false documents to the 3rd Respondent INEC along with other documents contrary to Section 31(5) and (6) of the Electoral Act, 2010 (as amended), and that the 1st Respondent also presented forged Degree certificate to the 3rd Respondent INEC along with other documents contrary to Section 182 (1) (j) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
The Appellants represented by an infantry of Senior Counsel, filed several grounds of appeal and distilled therefrom, seven issues for determination. The learned Counsel for the 1st Respondent nominated three issues for determination which the learned Counsel for the 2nd Respondent adopted. There is also notice of cross-appeal. Exercising the liberty enjoyed by the Court to compress, collapse or craft issues for determination distinct from the issues nominated by the parties bearing in mind, the need to allow such issues emerge from the Appellants’ grounds of appeal, see BIARIKO V. EDEH. OGWUILE (2001) 20 WRN 1 at 25-26. (2001) 12 NWLR (pt. 726) 235 at 265 LABIYI v. ANRETIOLA (1992) 8 NWLR (pt. 258) 139, 159.
I am of the view that, of all the issues distilled for determination, not more than single issue is material to the fair and just determination of the Appellants appeal. In my view therefore, the following issue is sufficient for discourse in the determination of this appeal.
“Whether the lower Court, misconceived the case of the Appellants, and the Appellants proved the allegations of falsification and forgery against the 1st Respondent.”
In their bid to disqualify the 1st Respondent from contesting election to the office of Governor of Edo State, the Appellants filed an elaborate Statement of Claim alleging falsification and forgery of Certificates, and listed the falsified and forged documents as University Degree, Advanced level WAEC and Testimonial from the institute of Continuing Education.
Learned Counsel for the contending parties submitted detailed arguments in their respective Briefs of Argument. I am sure it is not necessary to revisit the submissions, same having been ably captured in the leading judgment prepared and rendered by my learned brother.
The Statement of Claim of the Appellant carries in graphic details the allegations of falsification and forgery against the 1st Respondent, the Appellants therefore strenuously sought to erect the statement of claim as pedestal upon which to concrete their claim. The paragraphs of the Statement of Claim that are material to the allegations are therefore reproduced paragraphs as follows:
8. The plaintiffs aver that 1st Defendant submitted the said INEC Form EC9 to the 3rd Defendant on 29th June, 2020 together with photocopies of the relevant documents, including the following; statutory Declaration of Age of 20.01.76, WAEC A/Level Certificate of June, 1976, WAEC O/Level Certificate of June, 1973, Testimonial from the Institute of Continuing Education of 25/09/75 and undated Degree Certificate from the University of Ibadan. The plaintiffs shall rely on these documents and other documents attached to Defendant’s INEC Form EC9 sworn to on 29th June, 2020 during trial.
9. The Plaintiff avers that the 1st Defendant stated in the column for Educational Qualifications of INEC Form EC9 on 29th June, 2020 and he obtained O/Level West African School Certificate in 1973 and a University of Ibadan BA (Hons) Degree in Classical Studies in 1979.
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 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 basis 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 and 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 CF 001, 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 Egbosa 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 CF 001 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.
11. The Plaintiffs shall contend during trial that the 3rd Defendant received the 1st Defendant’s INEC Form CF 001 and believed the contents to be true and on that basis, 1st Defendant was listed as a candidates in that election which he won on the platform of the 1st Plaintiff.
12. The Plaintiffs aver that when 1st Defendant was filling out INEC Form EC9 in 2020, he stated that he obtained a Degree from the University of Ibadan in 1979 contrary to what he filled out on the equivalent or the same INEC in 2016 and supported this claim with a photocopy of a Degree Certificate from University of Ibadan without a date.
13. Plaintiffs aver that given the information disclosed on 1st Defendant’s Form CF001 of 11th July, 2016 and his purported Affidavit of 7/06/16 with respect to the date of obtaining a degree, the Defendant gave false information in his INEC Form EC9 of 29th June, 2020, wherein, he stated that he obtained his first degree from the University of Ibadan in 1979 in Column “C” of the said Form EC9 contrary to the provisions of Section 31(5) and (6) of the Electoral Act, 2010 (as amended). Both affidavits which are contradictory in material particulars co-exist side by side till date.
14. The Plaintiffs aver that the 1st Defendant presented false/forged University of Ibadan Degree Certificate to the 3rd Defendant on 29th June, 2020.
PARTICULARS OF FALSEHOOD/FORGERY
i) Contrary to the date stated in INEC Form CF 001 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 6th, 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 July, 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 and 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 publication 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 certificate of academic certificates in University of Ibadan. Plaintiffs would rely on the standard operative procedure of the Examinations, Records and Administrative Data processing Division of the University of Ibadan website 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 Defendant to the 3rd Defendant is purportedly signed by only the Vice-Chancellor and has no effective date of award contrary to standard operation procedure of the said University.
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.
PARTICULARS
i) A person who presents a forged certificate to the Independent National Electoral Commission is disqualified by the provisions of 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, Advance 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 indeed qualified to contest for the office of Governor of Edo State.”
From the above paragraphs extracted from the pleadings of the Appellants, they clearly sought for an order of the trial Court to make a determination disqualifying the 1st Respondent from participating in the Governorship Election of Edo State having falsified and forged his credentials. By the provisions of Section 31(6) of the Electoral Act, 2010 (as amended), where the Court makes a determination that a candidate deposed to an affidavit containing false information, or submitted false document, the Court shall issue an order disqualifying the candidate from contesting the election. Section 31(6) of the Electoral Act, 2010 (as amended), provides as follows:
“If the Court determines that any information contained in the affidavit or any document submitted by the candidate is false, the Court shall use an order disqualifying the candidate from contesting the election.”
In this appeal, the trial Court found that the allegation of falsification and forgery was a sham, the Appellants led no credible and believable evidence in proof of the weighty allegations and therefore dismissed the claim of the Appellants with speed. Appellants became nettled by the decision of the trial Court and made for the Court of Appeal, the lower Court also found no merit in the appeal, it was again dismissed, Appellants finally found their way to this Court on appeal.
It must be made clear that falsification and forgery are allegations of crime and require proof beyond reasonable doubt by the provisions of Section 135 of the Evidence Act, 2011.
The Section provides as follows:
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.
The Appellants who alleged falsification and forgery against the 1st Respondent did not deem it expedient at the trial to call evidence from the Institutions that awarded the doubtful certificates in proof of the weighty allegations. The 1st Respondent on the other hand, called witnesses from the awarding Institutions who testified to the effect that the certificates were genuine. The trial Court held that the Appellants failed to prove the allegations against the 1st Respondent beyond reasonable double and dismissed the claim. By the provisions of Sections 135 of the Evidence Act therefore, the Appellant failed to discharge the burden of proof foisted on him, and the 1st Respondent had no obligation to establish his innocence by calling the awarding Institutions in proof of his Certificates, where the Court is satisfied that there is no evidence to sustain the allegation, it is perfectly right to dismiss the claim. The burden of proving the allegation of falsification and forgery is on the person asserting it, and must be proved beyond reasonable doubt, see: OGAH V. IKPEAZU & ORS (2017) LPELR-42372 SC, where my Lord BAGE, JSC, (Now HRH) held as follows:
“…where there is an allegation that a person has presented a forged certificate to I.N.E.C., the burden and standard of proof should be as restated by this Court in the case of KAKIH v. P.D.P. (2014) NWLR (Pt. 1430) 374 at 423. This Court held as follows: “By virtue of Section 362 and 363 of the Penal Code, a party who asserts that another person presented a forged certificate must prove beyond reasonable doubt that the certificate was presented with the knowledge that it would be used fraudulently or dishonestly as genuine. In this case, for the Appellant to succeed in his case of presentation of forged certificate, he ought to have presented evidence that the 4th Respondent presented a forged certificate to the 2nd respondent knowing that it would be used fraudulently or dishonestly as genuine.” To have an increased velocity to this argument is that every forgery requires proof of requisite mens rea, i.e. knowledge that the document presented was going to be used fraudulently or dishonestly as genuine, which onus must be discharged by the Appellant. See: NWOBODO v. ONOH (1984.) 1 S. C. NLR 1; TORTI v. UKPABI (1984) 1 NSCC 141 at 145.”
Appellants’ appeal is against the concurrent findings of fact by the trial and lower Courts, Appellants failed to show that the findings are perverse, and this Court does not tinker with concurrent findings of fact unless there are cogent reasons for so doing, In the instant appeal, I find no such reason. See: LEVENTIS TECHNICAL LTD V. PETROJESSICA ENT LTD (1999) 6 NWLR (Pt. 605) 45 at 47, EMIATOR V. THE NIGERIAN ARMY & ORS (1999) 12 NWLR (Pt. 631) 362 at 3721 OKEKE & ORS V. ADU & ORS (1981) 11-12 SC at 42, IBODO V. ENAROFIA (1980) 5/7 SC 42 and UNIVERSITY OF CALABAR V. ESSIEN (1996) 10 NWLR (Pt. 477) 225.
It is therefore clear from all I have said that the case of the Appellant was not misconceived by the trial and lower Courts, and the Appellant failed to establish his claim against the Respondents beyond reasonable doubt, the order of the trial Court dismissing the claim was made properly so also the decision of the lower Court affirming the decision of the trial Court. I therefore resolve the sole issue in favor of the Respondents, against the Appellants. For the reasons set out in this judgment and the more detailed reasons in the leading judgment prepared and rendered in this appeal by my learned brother AGIM, JSC, I am of the view that Appellants’ appeal is frivolous, vexatious, patently devoid of merit and therefore deserves to be and is hereby dismissed by me. I endorse the leading judgment and abide by all consequential orders including the order on costs.
Appearances:
CHIEF AKIN OLUJIMI, SAN WITH HIM, ROLAND OTARU, SAN, A. T. KEHINDE OGUNWUMIJU SAN AND OLUMIDE OLUJIMI For Appellant(s)
KEN E, MOZIA SAN, WITH HIM, OLUSEGUN O. JOLAAWO, SAN, ROBERT EMUKPAERUO, SAN, O. OSAZE UZZI AND S.N ERNEST EGBURA – FOR 1ST RESPONDENT
R. O. ISENALUMHE – FOR 2ND RESPONDENT
IDAHOSA M. A. BAWA – FOR 3RD RESPONDENT For Respondent(s)
