All Progressives Congress Vs Peoples Democratic Party (2015)
LAWGLOBAL HUB Lead Judgment Report
NWALI SYLVESTER NGWUTA, J.S.C.
On the 21st day of June, 2014 the 3rd Respondent (INEC) conducted Governorship election in all the wards of the 16 Local Government Areas of Ekiti State. Eighteen political parties, including the appellant and 1st Respondent, contested the election through their respective candidates.
The result of the election showed that the 2nd Respondent, sponsored by his party, the Peoples Democratic Party (PDP) won with a total of 203,020 votes against a total of 120.433 scored by his closest rival a candidate of the main opposition party in the country, the All Progressive Congress (APC), the Appellant in this appeal.
Though its candidate at the election, John Olukayode Fayemi, accepted the result of the election and did congratulate the winner, Ayodele Peter Fayose of the PDP as shown in the record; the APC did not accept the result and challenged same at the Governorship Election Tribunal constituted for Ekiti State in Petition No.EPT/EKS/GOV/O1/2014 as the sole petitioner.
In its petition, the petitioner averred, inter alia:
“… that the election was marred with irregularities that are unprecedented in the annals of elections in this country as ‘photo chromic’ and ‘thermo chronic’ ballot papers already programmed to favour the 1st and 2nd Respondents in all the polling units, were used.”
Specifically, the petitioner (now appellant) predicated his petition on the following grounds:
“(i) The 2nd Respondent was not duly elected by majority of lawful votes cast at the election.
(ii) The election of the 2nd Respondent is invalid by reason of corrupt practices.
(iii) The election of the 2nd Respondent is invalid by reason of non-compliance with the provisions of the Electoral Act 2011 as amended and the Manual of Election Officials 2014 and the Constitution of the Federal Republic of Nigeria 1999 (as amended).
(iv) The 2nd Respondent was not qualified to contest as at the time of the election on the following grounds:
(a) The 2nd Respondent was found guilty of the contravention of the Code of Conducts by the impeachment panel set up by the Acting Chief Judge of Ekiti State on allegation of gross misconduct involving embezzlement of funds preferred against him by the Ekiti State House of Assembly consequent upon which he was impeached and removed from office of the Governor of Ekiti State in the year 2006.
(b) The 2nd Respondent presented a forged Higher National Diploma (HND) Certificate of The Polytechnic Ibadan to the 3rd Respondent (INEC).”
Not only did the appellant as petitioner adopt the facts averred in paragraphs 1 to 35 of the Petitioner, as facts in support of the grounds of the Petition, it also made and relied on specific averments in respect of some Local Government Areas in the State.
Based on the facts stated in its Petition, the appellant (as Petitioner) sought the following reliefs:
“A. That it be determined and declared that the 2nd Respondent, Peter Ayodele Fayose, was not qualified to contest the Governorship Election held on 21st June, 2014 on the ground that he was found guilty of the contravention of the Code of Conduct by the Impeachment Panel set up by the Acting Chief Judge of Ekiti State and the Ekiti State House of Assembly, consequent upon which he was impeached and removed from the office of the Governor of Ekiti State in the year 2006.
B. That it may be determined that the 2nd Respondent presented a forged certificate of Higher National Diploma (HND) of The Polytechnic Ibadan to the Independent National Electoral Commission thus was not qualified to contest the election.
C. That it be determined and declared that the 2nd Respondent Peter Ayodele Fayose was not duly elected or returned by the majority of lawful votes cast at the Ekiti State Governorship Election held on Saturday, 21st June 2014.
D. That it may be determined that having regards to the non-qualification of the 2nd Respondent to contest the election, the 3rd Respondent ought to have declared the candidate of the petitioner, John Olukayode Fayemi, who scored the highest number of lawful votes cast at the election, as the winner of the election.
E. An order of the Tribunal withdrawing the Certificate of Return issued to the 2nd Respondent by the 3rd Respondent and present the Certificate of Return to the candidate of the petitioner, John Olukayode Fayemi, who scored the majority of valid votes cast and having met the constitutional requirements as required by law.”
In the alternative the petitioner (now appellant) asked for:
“An order nullifying the Governorship Election held on 21st June 2014 and a fresh election ordered.”
Upon service of the petition on them the Respondents filed their replies, denying all the material averments therein.
At the end of the trial, the Tribunal considered the relevant materials before it as well as the addresses of learned counsel representing the parties and came to the conclusion that:
“On the whole, all the relevant issues arising from the grounds upon which this petition is predicated and the reliefs sought therein having been resolved against the Petitioner, the petition is hereby dismissed for lacking in merit.”
The judgment dismissing the petition by the three-man Tribunal was unanimous. Aggrieved by the judgment, Appellant appealed to the Court of Appeal Ekiti Judicial Division.
Also the 1st Respondent, aggrieved by the order of the Tribunal over-ruling its preliminary objection to the locus standi of the Appellant/Cross-Respondent cross-appealed same to the Court of Appeal Ekiti Judicial Division.
In a unanimous decision the Court below dismissed the appeal in the following terms:
“Even though some of the issues relating to the handling of the trial by the Tribunal were resolved in favour of the appellant, those errors did not occasion a miscarriage of justice. Thus having resolved the substantive issues of disqualification and return as well as forgery against the appellant, we are of the opinion that there is no merit in this appeal and it is hereby dismissed. The judgment of the Tribunal delivered on 19th December, 2014 is hereby affirmed.”
With respect to the Cross-appeal, the Lower Court said:
“In the result, having resolved as above in respect of the two issues, the cross-appeal succeeds in part in the following terms:
- The Election Tribunal acted rightly when it held that the 1st Cross-Respondent had a right under the Electoral Act, 2010 (as amended) and was competent to claim all the reliefs contained in the petition in spite of the non-joinder of the Gubernatorial candidate as a co-petitioner.
- The Election Tribunal was in error to hold that the allegation of the 1st Cross-Respondent on the issue of disqualification of the 2nd Cross-Respondent was founded on the contravention to the Code of Conduct and not on impeachment. The cross-appeal succeeds in part.”
Again, appellant felt aggrieved and appealed to this court on the 14 grounds of appeal endorsed on the Notice of Appeal filed on 27/2/2015. Also the 1st Respondent was aggrieved by part of the judgment of the court below and cross-appealed same on ten grounds endorsed on the “Notice of Appeal” (which should have been headed Notice of Cross-Appeal) filed on 27/2/2015.
There is also another “Notice of Appeal” filed on 27/2/2015 by the 1st Respondent. It has seven grounds of appeal (Cross-appeal). Mr. Peter Ayodele Fayose filed the 3rd cross-appeal on 2/3/15 on five grounds of appeal.
In compliance with the rules of this court, learned counsel for the parties in the main appeal and cross-appeals filed and exchanged briefs of argument.
In his brief of argument, learned Senior Counsel for the appellant distilled the following seven issues from the appellant’s grounds of appeal for the Court to resolve:
“(1) Whether the Court of Appeal was right in decision that the 4th and 5th Respondents were not necessary parties to the petition in the light of the pleadings and findings made by the Court of Appeal and whether INEC ought to take responsibility for their actions (Grounds 11, 12 and 13).
(2) Whether the Court of Appeal was right in its decision that the Appellant based its petition on impeachment and whether the decision in Omoworare v. Omisore (2010) 3 NWLR (Pt.1180) 58 was rightly applied to this case by the Court of Appeal (Grounds 2, 4, 5 and 7).
(3) Whether the Court of Appeal was right that the Appellant did not prove disqualifying ground under Section 182 (1) (e) of the Constitution of Nigeria, 1999 (as amended) against the 2nd Respondent (Grounds 1, 3 and 6).
(4) Whether the Court of Appeal was right in its decision that the Appellant did not prove the allegation of forged HND Certificate by the 2nd Respondent to INEC (Ground 8).
(5) Whether the Court of Appeal was right in its decision that the case of Alliance for Democracy v. Fayose (2004) All FLWLF (Pt.222) 1719 at 1744-46 has settled the issue of authenticity of HND certificate presented by the 2nd Respondent to INEC (Ground 9).
(6) Whether the Court of Appeal was right in its decision affirming the striking out of paragraph 13 of the Appellant’s Reply to the 2nd Respondent’s Reply to the petition (Ground 10).
(7) Whether the Court of Appeal was right when it failed to nullify the governorship election for Ekiti State held on the 21st June, 2014 in spite of its findings that soldiers were unlawfully deployed and used for the election (Ground 14).”
Learned Counsel for the 1st Respondent formulated the following four issues for determination by the Court:
“1. Whether the Court below was in error to hold that the Appellant did not make out a case in its pleadings or prove the disqualifying ground under Section 182 (1) (e) of the 1999 Constitution as amended. (Grounds 1-7).
- Whether the Court below was in error to affirm the decision of the Tribunal that the Appellant failed to prove its allegation that the 2nd Respondent presented a forged certificate of The Polytechnic Ibadan to the 3rd Respondent. (Grounds 8 and 9).
- Whether the Court below was in error to affirm the decision of the Tribunal striking out paragraph 13 of the Petitioner’s Reply to the 2nd Respondents Reply. (Ground 10).
- Whether the Court below was in error to affirm the decision of the Tribunal striking out the names of the 4th and 5th Respondents and in not nullifying the gubernatorial election of June 21st, 2014.
(Grounds 11, 12 and 14).”
The learned Silk for the 2nd Respondent presented the five issues hereunder reproduced:
“1. Whether the learned Justices of the Court of Appeal were not right in agreeing and coming to the conclusion that the appellant relied on the alleged impeachment of the 2nd respondent as one of the grounds of disqualification and in holding that the allegation of contravention of Code of Conduct relied upon by the appellant was not proved and whether the reliance of the Court of Appeal on the decision in Omoworare v. Omisore was not right. (Grounds 1-7).
- Whether the Court of Appeal was not right in holding that the allegation of forgery of a Higher National Diploma (HND) Certificate by the 2nd Respondent was not proved and that the ownership of the said certificate had earlier been decided in the case of AD v. Fayose (2004) All FWLR (Pt.222) 1219. (Grounds 8 and 9).
- Whether the Court of Appeal was not correct in its decision affirming the trial Tribunal’s striking out of paragraph 13 of the petitioner’s reply to the 2nd respondent’s reply to the petition when the said paragraph 13 was in fact filed in contravention of the applicable provision on reply and pleadings. (Ground 10).
- Whether the Court of Appeal was not correct in its interpretation and views on the provisions of Section 137 (2) and (3) of the Electoral Act 2010 (as amended) by upholding the striking out of the 4th and 5th Respondents who are not statutory parties and are not agents of the 3rd Respondent (INEC) and whether INEC could take responsibility for their acts. (Grounds 11, 12 and 13).
- Whether the mere fact that the Court of Appeal made comments on the alleged deployments of members of the Armed Forces at the election of 21st June, 2014 in Ekiti State which was not even proved would without more, lead to nullification of the election which was conducted in substantial compliance with the Electoral Act and the law. (Ground 14).”
Learned senior counsel for the 3rd Respondent distilled the following five issues from the appellant’s grounds of appeal:
“1. Whether the Court of Appeal was right in its decision that the ground of disqualification under Section 182 (1) (e) of the Constitution of the Federal Republic of Nigeria 1999 was not proved (Grounds 1, 3 and 6).
- Whether the Court of Appeal was right in its decision that the outcome of the impeachment process of the 2nd Respondent did not constitute a ground of disqualification of a candidate under Section 66 (1) (d) and (h) of the Constitution of the Federal Republic of Nigeria, 1999 as amended. (Grounds 2, 4, 5 and 7).
- Whether the Court of Appeal was right in affirming that the criminal allegation of forgery of Higher National Diploma Certificate by the 2nd Respondent was not proved. (Grounds 8 and 9).
- Whether the Court of Appeal was right in its decision that paragraph 13 of the Appellant’s Reply to the
2nd Respondent’s Reply was rightly struck out. (Ground 10).
- Whether it was proper to have joined the 4th and 5th Respondents as parties who did not qualify as statutory respondents and there being no reliefs sought against them by the Appellant as petitioner before the Tribunal. (Grounds 11, 12, 13 and 14).”
For the 4th Respondent, the following three issues were presented for determination:
“1. Whether the Court of Appeal was right when it upheld the Tribunal’s decision to the effect that the 4th
Respondent did not qualify as a respondent as contemplated by Section 137 (2) and (3) of the Electoral Act, 2010 (as amended). (Ground 11).
- Whether the Court of Appeal was right when it affirmed the decision of the Election Tribunal striking out the names of the 4th and 5th Respondents and if striking out the names of the 4th Respondent contravened his (4th Respondent’s) constitutional right to fair hearing. (Ground (sic) 12 and 13).
- Whether the Court of Appeal was right when it failed to nullify the Governorship Election of Ekiti State held on the 21st day of June, 2014. (Ground 14).”
Learned Counsel for the 5th Respondent adopted the appellant’s issue 1 for determination on the ground that the said issue is the only one of appellant’s seven issues which relates to the issues raised and canvassed by the 5th Respondent in the Court below.
Learned Counsel for the parties made copious submissions on the issues in their respective briefs. The learned Senior Counsel for the appellant made submissions in his reply briefs to the briefs filed by 1st to 5th Respondents.
Learned Counsel for the parties adopted and relied on the argument in their briefs including the reply briefs at the hearing of the appeal on 26th March, 2015, each earnestly urging the Court to decide in favour of his client.
At this point in the judgment there is need to scrutinize and sanitize the issues raised by learned Counsel in their briefs. Learned Senior Counsel formulated seven (7) issues from his 14 grounds of appeal. For the 1st to 5th Respondents 5, 5, 5, 3 and 1 issues respectively were distilled for determination. Apart from the 5th Respondent who expressly adopted appellant’s issue 1, the 1st to 4th Respondents’ issues are variations of, and subsumed in, the seven issues formulated and canvassed by the appellant.
I will therefore determine the appeal on the issues in the appellant’s brief. Some of the issues are so related that it will be neater to resolve them together. Issue 1 can conveniently be resolved together with the related issue 7, issues 2 and 3 are also to be resolved together; also issues on the alleged forged HND certificate will be resolved as one issue, leaving issue 6 to be resolved alone. In summary:
Issues 1 and 7 constitute Issue 1;
Issues 2 and 3 constitute Issue 2;
Issues 4 and 5 constitute Issue 3;
and what was Issue 6 becomes Issue 4.
Appellant’s 7 issues in which, as I said earlier in the judgment, the various issues submitted by the respondents are subsumed, are collapsed into 4 issues which I purpose to resolve seriatim. The two issues merged to constitute Issue 1 are appellant’s original issues and 1 and 7, hereunder reproduced once more for ease of reference:
“Original Issue 1: Whether the Court of Appeal was right in its decision that the 4th and 5th Respondents were not necessary parties to the petition in the light of the pleadings and findings made by the Court of Appeal and whether INEC ought to take responsibility for their acts. Grounds 11, 12 and 13.
Original Issue 7: Whether the Court of Appeal was right when it failed to nullify the governorship election for Ekiti State held on the 21st June, 2014 in spite of its findings that soldiers were unlawfully deployed and used for the election
(Ground 14).”
The main thrust of the appellant’s argument appears to be that Section 137 (2) and (3) of the Electoral Act 2010 (as amended) is not exhaustive as to persons who can be joined as respondents to an election petition. It was argued that the section of the Electoral Act did not provide that any other constitutional or statutory body such as the Police and the Armed Forces against whom allegation of conduct amounting to a violation of the provisions of the Electoral Act and the Constitution are made cannot be joined as respondents to defend the allegations made against them.
Reference was made to constitutionally guaranteed right of any person against whom allegations are made in a petition to defend himself. Reference was made to Egolum v. Obasanjo (1999) 7 NWLR (Pt.611) 335 at 497 to stress the fact that no person shall be guilty of an offence without being given an opportunity to defend himself.
Appellant also relied on the case of Kalu v. Chukwumerije (2012) 12 NWLR (Pt.1315) 425 at 559-560. It was emphasised that the 4th and 5th Respondents are necessary respondents to the petition and could defend the allegation made against them. Appellant made reference to Section 153 (1) of the Constitution (supra) for the creation of INEC, Section 217 (1) for the creation of the Armed Forces of the Federation and Section 214 (1) of the Constitution creating the Nigeria Police Force and submitted that INEC cannot be an agent of the 4th and 5th Respondents and that INEC as an independent statutory body cannot answer for the sins of the statutory bodies such as the 4th and 5th Respondents.
Appellant reproduced copiously portion of the judgment of the Court below and concluded that based on the Court of Appeal’s acknowledgement of deployment of soldiers, the Court below was bound to nullify the election.
In the 1st Respondent’s issue 4 which related to appellant’s issues 1 and 7, it was contended that those who can be made respondents in an election petition under Section 137 (a) and (3) fall into two classes:
(1) Those whose election is complained of in Section 137 (2) of the Act and (2), those officers specified under Section 137 (3) of the Act by whatever designation they may be called. Reliance was placed on Section 38 of the Act which amended the First Schedule to the Electoral Act.
Placing reliance B.A.T. Company Ltd v. International Tobacco Company Ltd (2012) LPELR 2875 it was contended that absence of any relief claimed against the 4th and 5th Respondents in the petition made their joinder wrong. First Respondent referred to page 1470 Vol. 2 of the record for the finding of fact by the trial Tribunal that the appellant failed to prove its allegation against the 4th and 5th Respondents and noted that since this finding was not challenged in the Court below, the allegation of intimidation and harassment by soldiers or policemen cannot be raised in this Court.
It was submitted for the 1st Respondent that since the Court below endorsed the decision of the trial Tribunal with regards to 4th and 5th Respondents, its comments on the alleged deployment of soldiers cannot be a ground for nullifying the election.
The 2nd Respondent dealt with this issue in his issues 4 and 5. It was emphasised on behalf of the 2nd Respondent that no specific member of the Armed Forces or the Nigeria Police Force was named in the petition and no relief was sought against the Chief of Defence Staff or the Inspector-General of Police as the 4th and 5th Respondents.
With reference to page 1434 of the record, it was contended that the 4th and 5th Respondents did not take part in the conduct of the election but merely provided security nor did the 4th and 5th Respondents qualify as statutory respondents under Section 137 (2) and (3) of the Act and that the decision of the Tribunal was affirmed by the Court below.
It was contended, with reliance on Buhari v. Yusuf (2003) 13 NWLR (Pt.841) 446 at 508 that an election petition is sui generis and that the reliefs grantable are limited by statute in the same way as the parties who can sue and be sued. It was contended for the 2nd Respondent that since no allegation was made against the persons of the 4th and 5th Respondents their joinder in the petition was a result of misapplication of the principle of vicarious liability which applies only in civil cases.
Reliance was placed on Adeoye v. Olorianoje (1996) 2 MAL 256 at 262 to the effect that a master is not responsible for the crime of his servant. It was argued that the petition could be effectively and effectually determined in the absence of the 4th and 5th Respondents and so they are not necessary parties. With reference to appellant’s issue 7 distilled from ground 14, it was contended that the comments of the Court below did not amount to a specific finding or pronouncement by the said Court but only an obiter which cannot form the basis of a ground of appeal.
Reference was made to Balonwu v. Governor Anambra State (2010) All FWLR (Pt. 503) 1206 at 1229. It was further argued that mere deployment of soldiers even though deprecated by the Court below is not evidence that such deployment substantially affected the outcome of the election in any way. The Court was urged to resolve the issue against the appellant.
The 3rd Respondent dealt with Issue 1 in its Issue 5 but appeared to have ignored appellant’s Issue 7 which now forms part of Issue 1. It was argued for the 3rd Respondent that the petition did not name any officer of any security agency who was involved in the acts alleged therein, and no relief was claimed against the 4th and 5th Respondents in the petition. It was also argued that Section 137 (3) of the Electoral Act does not extend to the 4th and 5th Respondents in respect of the criminal allegation made against soldiers and policemen and that there is no vicarious liability in crime.
Reference was made to Chief Rex Olawole v. Engr Raphael Jimoh & ors (2013) LPELR 20344 in support of the contention that the 4th and 5th Respondents were wrongly joined as parties. Third Respondent urged the Court to resolve the issue against the appellant.
The 4th Respondent dealt with issue 1 in its Issues 2 and 3; though Issues 1 and 2 were argued together. It was argued for the 4th Respondent that the trial Tribunal upheld the preliminary objection to the joinder of the 4th and 5th Respondents and the decision was affirmed by the Court of Appeal resulting in a concurrent finding of facts by the two Courts below. Reliance was placed on Section 137 (2) and (3) in the contention that the 4th and 5th Respondents were not in the two classes of persons envisaged therein.
It was further submitted that appellant did not appeal the determination on merit made by the Tribunal that the 4th Respondent was not a party and consequently the appellant cannot urge the Court to rely on any act of the 4th Respondent to nullify the election since it was not a party to the petition.
The 5th Respondent adopted the appellant’s Issue 1- as originally formulated since only the issue referred to the 5th Respondent. It was argued that the Tribunal rightly struck out the 5th Respondent for the following reasons:
(i) It was not a necessary party.
(ii) No allegation of wrong doing was made against it and it cannot be held liable vicariously for acts of crimes alleged against unnamed Policeman, and
(iii) No relief in the petition was sought against it.
It was noted that the Court below affirmed the above decision and there was no perversity shown to oblige this Court to interfere with the concurrent findings of the two Courts below.
Issue 2 is a merger of Appellant’s Issues 2 and 3. It queries the decision of the Court below that the petition was predicated on impeachment rather than disqualification of the 2nd Respondent under Section 182 (1) (e) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and impugns the decision of the Court below that the disqualifying factor in Section 182 (1) and (e) of the Constitution was not proved.
It was submitted for the appellant thus: That the Tribunal accepted the case of the appellant that the ground of the petition was breach of the Code of Conduct and not impeachment. The Court of Appeal erred and misrepresented the judgment of the Tribunal by purporting to affirm the decision of the Tribunal that the result of the impeachment is not a ground for disqualification under Section 182 (1) (e) of the Constitution, and that this error led the Court below to wrongly apply the decision in Omoworare v. Omisore (2010) 3 NWLR (Pt.1180) 58 in which it was held that the impeachment relied on as a ground of the petition is not a disqualifying factor in an election petition.
It was argued that a holistic look at Section 182 (1) (e) of the Constitution will reveal that the intention of the law makers is that a panel set up by House of Assembly and the House itself can find a governor guilty of a breach of Code of Conduct. It was contended that it is not exclusive duty of the law Court or Code of Conduct Tribunal to determine that a governor has committed a breach of the Code of Conduct.
It was stressed that the words “conviction and sentence” in the first arm of the provision and the use of “or” shows that the 1st arm is used as alternative to the 2nd arm which does not involve “conviction and sentence”. It was emphasised that each of the two arms of Section 182 (e) constitutes a disqualification. Reference was made to the record for the finding of guilt returned by the impeachment panel and the removal of the 2nd Respondent by the House of Assembly based on the finding.
It was also contended that the appellant duly pleaded relevant facts and tendered relevant documents in proof of the ground of petition and reliance was placed on Exhibit H, the result of unsuccessful attempt by the 2nd Respondent to vacate the finding that he was guilty of contravention of the Code of Conduct at the Court of Appeal Benin that struck out his claim. The Court was urged to resolve the issue in favour of the appellant.
The 1st Respondent dealt with this issue in its Issue 1. The 1st Respondent relied on Appellant’s paragraphs 35 (iv) (a) and 110-120 of the petition in its argument that the petition as a whole did not make a case under Section 182 (1-) (e). Reference was made to the 1st Respondent’s pleading of an earlier impeachment which was constituted by the Chief Judge of Ekiti State and it was submitted that the setting up of another panel by a purported Acting Chief Judge of the State is unconstitutional and the result thereof suffers the same fate.
Pursuant to paragraph 18 of the Fifth Schedule to the Constitution Part 1 it was argued that a guilty verdict of contravention of the Code of Conduct cognizable under Section 182 (1) (e) of the 1999 Constitution must be a verdict returned by the Code of Conduct Tribunal. The Court was urged not to disturb the concurrent findings of the two Courts below.
The 2nd Respondent did not specifically deal with the appellant’s issues 2 and 3 merged to form issue 2.
The 3rd Respondent answered Issue 2 in its Issues 1 and 2 but it would appear that reference to Section 66 (1) (d) and (h) of the Constitution of the Federal Republic of Nigeria 1999 as amended was in error. With reference to paragraphs 35 (iv) (a), 110, 111, 118 and 119 of the petition it submitted that the petition relied on the purported impeachment of the 2nd Respondent as a disqualifying factor. It was argued that neither a witness called, nor a document tendered by, the appellant made reference to Section 182 (1) (e) of the Constitution and so the appellant did not prove non-qualification under the said Section of the Constitution (supra).
The 3rd Respondent relied on the judgment of the Tribunal which was affirmed by the Court below to the effect that Exhibits M, M1, N and N1 relied on by the appellant, not being the outcome of judicial proceeding of either a regular Court or Code of Conduct Tribunal cannot be the basis of disqualification of the 2nd Respondent from contesting the Governorship election in Ekiti State. The Court was urged to resolve issues 1 and 2 in the 3rd Respondent’s brief against the appellant.
The 4th Respondent skipped appellant’s issues 2 and 3 (now Issue 2). Issues 4 and 5 in the appellant’s brief were collapsed into Issue 3 herein. The issue is on proof vel non of the allegation of presentation of forged certificate to INEC and whether the authenticity of the 2nd Respondent’s HND certificate was settled in AD v. Fayose (2004) All FWLR (Pt.222) 1719 at 17444-46.
Appellant’s case is that Exhibit G tendered by the 2nd Respondent is the bio-data of one Oluwayose Ayodele Peter while Exhibit E is the document submitted by the 2nd Respondent to the 3rd Respondent as the 2nd Respondent’s Higher National Diploma certificate. It was contended that Exhibit E which the 2nd Respondent submitted to INEC was never issued to 2nd Respondent by The Polytechnic Ibadan. Appellant relying on Nwobodo v. Onoh (1984) NSCC 1 at 3 conceded the allegation relating to the HND certificate was allegation of crime and ought to be proved beyond reasonable doubt.
Relying on Akindipe v State (2012) 16 NWLR (Pt.1325) 94 at 114 and State v. Onyeukwu (2004) 14 NWLR (Pt.813) 340 at 370 appellant submitted that proof beyond reasonable doubt is not proof beyond all shadow of doubt and on the authority of Oguonzee v. State (1998) 8 NWLR (Pt.551) 521 at 551, Ali v. State (2012) 7 NWLR (Pt.1299) 209 at 235 it was submitted that proof beyond reasonable doubt can be attained by the evidence of one witness and not necessarily by a host of witnesses.
It was argued that in view of the documents before the Tribunal oral evidence was irrelevant to prove the facts in the documents and that where a certified true copy of the document has been tendered the content of such document are presumed to be genuine and correct. It was argued that Exhibit 5 exposed the falsity of the claim in Exhibit E. It was pointed out that the 2nd Respondent is distinct and different from the person referred to in Exhibit G as being from Oluyole Local Government of Oyo State.
It was also argued that requiring the appellant to procure the man named in Exhibit G would amount to subjecting the appellant to proof beyond all shadow of doubt. With reference to Section 182 (1) j (sic) of the 199 Constitution, it was argued that the 2nd Respondent was disqualified from contesting the election of 21st June, 2014 which took place in Ekiti State. It was contended that while AD v. Peter Ayodele Fayose (supra) decided the alleged non-possession of the basic educational qualification to contest the election whereas the present petition charged the 2nd Respondent with presentation of a forged HND Certificate to INEC and since the parties and the questions decided are not the same issue estoppel cannot apply in the present case. It was argued that the earlier decision cannot be relied on in this case as the decision was not a final decision, and that the Court below was wrong to have relied on it.
The 1st Respondent answered the issue of forged certificate in its issue 2 which is said to relate to appellant’s Issues 4 and 5 (herein issue 3). In dealing with the issue 1st Respondent referred to Exhibit E, the HND certificate issued by The Polytechnic Ibadan to the 2nd Respondent and certified by the Registrar of the Institution, Exhibit G – the student record of the 2nd Respondent on the second page of which is the passport photograph of the 2nd Respondent which was also certified by the Registrar of the Institute, Exhibit P is the affidavit in support of the personal particulars of the 2nd Respondent also certified by AG Director Legal Services of INEC.
It was urged on the Court to accept the contents of the documents to be true and correct. With reference to the evidence of one Mrs. Victoria Oluwayose (formally Fayose) it was contended that Ayodele Fayose and Ayodele Oluwayose is one and the same person. The witness swore that she is the mother of Mr. Ayodele Fayose. The Court was urged to affirm the concurrent finding of the two Courts below that the appellant failed to prove that the 2nd Respondent presented a forged certificate to INEC especially as Nsofor, JCA had decided the issue in AD v. Fayose (supra) in that the Petitioner in the said case failed to produce the Ayodele Peter Oluwayose to claim the certificate as his. The Court was urged to resolve the issue against the appellant.
The 2nd Respondent dealt with the issue of proof of allegation of forged certificate allegedly presented to INEC in his issue 2. On behalf of 2nd Respondent, reliance was placed on AD v. Fayose (supra) for reliance on the principle of res judicata in view of the earlier decision. In any case, it was submitted that the allegation of forgery being one of a crime was not proved beyond reasonable doubt by virtue of Section 486 of the Criminal Code Act and Section 135 of the Evidence Act dealing with onus of proof in criminal cases.
It was argued that the decision of the Tribunal that the allegation was not proved and the affirmation of the decision by the Court below constitute concurrent findings of fact with which this Court cannot interfere as no perversity has been demonstrated by the appellant. Reference was made to page 1938 of the record for the decision of the Court below that the appellant did not make a prima facie case for the 2nd Respondent to rebut by adducing evidence.
The 2nd Respondent argued that the parties herein are the same as the parties in AD v. Fasoye (supra) as the Court can take judicial notice of the fact of the metamorphosis of the defunct Alliance for Democracy into the Action Congress of Nigeria and later to be All Progressive Congress, the appellant herein. The 2nd Respondent urged the Court to resolve the issue against the appellant.
The issue of the criminal allegation of forgery was dealt with by the 3rd Respondent in its issue 3. It was stated that the Court below was right in affirming the decision of the Tribunal that the allegation was not proved beyond reasonable doubt in accordance with Section 135 (1) of the Evidence Act, 2011. Reliance was placed on ACN v. INEC (2013) NWLR (Pt.1370) 161 at 185, Nwobodo v. Onoh (supra).
On the appellant’s argument that the 2nd Respondent ought to have testified in his defence, it was argued that the burden of proof of the allegation of crime rests on the person who made the allegation as the accused person does not have to prove his innocence. The Court was urged to resolve the issue against the appellant.
The 4th and 5th Respondents skipped the issue in their respective briefs.
Issue 6 as originally formulated (now Issue 4) questions the affirmation by the Court below of the order striking out paragraph 13 of the appellant’s reply to 2nd Respondent’s reply to the petition. Appellant referred to paragraph 16 (1) (A) of the First Schedule to the Electoral Act 2010 on raising new issue in a party’s reply. Reference was made to paragraph 109 of the petition and the answer in paragraph 29 of the 2nd Respondent’s reply and the paragraph in question – paragraph 13 – of the appellant’s reply to the 2nd respondent’s reply to the petition.
It was argued that paragraph 13 of the appellant’s reply did not raise new issues but only explained an issue which a defendant could have raised so that a plaintiff or petitioner would neutralize the position taken by the defendant or a respondent. Reference was placed on Ishola v. SGBN (1997) 2 NWLR (Pt. 488) 408 at 421 paras E-F and Amaechi v. INEC (2008) 5 NWLR (Pt.1080) 227 at 315-316. The Court was urged to rely on the concept of substantial justice to save paragraph 13 of the Petitioner’s reply and set aside the decision of the Court below.
In dealing with this issue as Issue 3 in its brief, the 1st Respondent adopted the submission of the 2nd Respondent on the issue and relied on the case of Charles Ehighe Airhavbere, Maj. Gen v. Comrade Adams Aliyu Oshiomhole & ors (citation not supplied), adding that the paragraph struck out ought to have been excluded in the petition.
The 2nd Respondent argued the issue in his brief as issue 3. He reproduced paragraph 13 in the appellant reply and argued that the owner of the HND certificate being an indigene of Oluyole Local Government is a material fact and came for the first time in the Petitioner’s reply. It was argued that the decision of the Court below to affirm the decision of the Tribunal striking out the paragraph was unimpeachable.
It was emphasized that it was not the case of the appellant that the HND certificate was issued to an indigene of Oluyole Local Government of Oyo State. Reference was made to Adepoju v Awoduyilemi (1999) 5 NWLR (Pt.603) 364 at 382. It was contended that a restoration of paragraph 13 of the appellant’s reply would occasion a great injustice on the 2nd Respondent who would be shut out from contesting the allegation of impersonation in the said paragraph 13. The Court was urged to affirm the concurrent findings of the lower Courts in striking out the said paragraph 13 of the appellant’s reply.
The 3rd Respondent dealt with the issue in its issue 4 in its brief.
Reference was made to paragraph 16 (1) (a) of the First Schedule to the Electoral Act, 2010 regulating the contents of appellant’s reply to a respondent’s reply to the petition. It was argued that additional issue of presenting a certificate belonging to a different person from another State is impersonation and was raised by the appellant for the first time. It was argued that the Court of Appeal was right to have affirmed the decision of the trial Tribunal to strike out the said paragraph 13 of the appellant’s reply. It was further argued that forgery is not related to impersonation. The Court was urged to resolve the issue against the appellant.
The 4th and 5th Respondents did not deal with the issue relating to paragraph 13 of the appellant’s reply to the 2nd Respondent’s reply in their respective briefs.
Learned Senior Counsel for the Appellant filed Appellant’s Reply Briefs to the 1st to 4th Respondents’ briefs. This would appear to be in consonance with Order 6 Rule 5 (3) of the Supreme Court Rules which provides, inter alia, that “The appellant may also file in the Court and serve on the Respondent a reply brief…”.
The appellant may or may not file a reply brief. Appellant would need to file a reply brief only in response to a new issue raised in the respondent’s brief. The intendment of Order 6 Rule 5 (3) (supra) is not to confer a right on the appellant to repeat the argument in the appellant’s brief, perhaps, with a view to improving the brief or bringing in new issues upon which the respondents would have no right of reply.
It cannot be employed as a forum for laying emphasis on the arguments in the appellant’s brief. Appellant ought not repeat the issues joined in the brief either by emphasis or expatiation. That would amount to taking undue advantage of the respondent who has no right of reply. See Ochemaje v. The State (2008) 6-7 SC (Pt.11) page 1.
In the light of the above, can it be said that appellant’s reply briefs relate to new issues raised in the respondents’ brief. I do not think so. Each reply brief set out issues identified and argued in the respondents’ brief and proceeded to re-argue the issues seriatim. To allow this practice would amount to encouraging a ding-dong affair in the filing of briefs. I will ignore the reply briefs as repetition of arguments on the issues joined and canvassed in the appellant’s and respondents’ brief.
Having considered all the relevant materials put before us, I will now resolve the issues in the appeal.
RESOLUTION OF ISSUES
Issue 1 is composed of the appellant’s Issues 1 and 7 hereunder reproduced for ease of reference:
“1. Whether the Court of Appeal was right in its decision that the 4th and 5th Respondents were not necessary parties to the petition in the light of the pleadings and findings made by the Court of Appeal and whether INEC ought to take responsibility for their acts. (Grounds 11, 12 and 13).
- Whether the Court of Appeal was right when it failed to nullify the governorship election for Ekiti State held on the 21st June, 2014 in spite of its findings that soldiers were unlawfully deployed and used for the election (Ground 14).”
Generally, a necessary party is one not only interested in the dispute but the matter cannot be decided fairly in his absence. See Chief Abusi David Green v. Chief Dr. E. T. D. Green (1987) 3 NWLR at 480 pages 492 and 493. What interest does the 4th Respondent – Chief of Defence Staff or the 5th Respondent – Inspector-General of Police have in the subject matter of the petition In other words, what is the interest of the 4th and 5th Respondents in the dispute as to who won the governorship election held on 21/6/2014 for Ekiti State. The appellant did not show what interest any or both of them had in the result of the election. It was not even shown that either or both of them is/are indigenes of Ekiti State.
However, Section 137 of the Electoral Act, 2010 as amended made provision for parties to an election petition. The section is hereunder reproduced:
“S.137 (1): An election petition may be presented by one or more of the following persons:
(a) A candidate in an election.
(b) A political party which participated in the election.
(2) A person whose election is complained of is in this Act referred to as the Respondent.
(3) If the petition complains of the conduct of an Electoral Officer, a Presiding or Returning Officer, it shall not be necessary to join such officer or persons notwithstanding the nature of the complaint and the Commission shall, in this instance, be
(a) made a respondent, and
(b) deemed to be defending the petition for itself and on behalf of officers or such other persons.”
The Act, in Section 132 (3) prohibits the joinder of Electoral Officer, Returning Officer and other staff or agents of the Commission. The Commission has the duty to answer for the conduct of “its Officers or such other persons. By doctrine of Ejusdem generis, those referred to as “such other persons”, permanent or temporary staff of the Commission exclude non employees of the Commission, The Commission answers for the conduct of its officers and “such other persons” even if the allegation or complaint against them is of criminal offence. Any person or group of persons outside the Commission’s “officers and such other persons” not employed for the proper conduct of the election getting involved in the election process does/do so at his/their own risk. They are on a frolic of their own and the Commission has no duty to answer for their conduct.
In my view, the 4th and 5th Respondents are not within the class of the Commission’s officers or “such other persons” who may have been employed as permanent staff or ad hoc staff in the Commission. In other words, the 4th and 5th Respondents at all material times were neither “officers” of the Commission nor were they “such other persons” engaged by the Commission and it therefore follows that they are not necessary or even parties to the petition challenging the result of the June 21st, 2014 election in Ekiti State.
But assuming without conceding that the 4th and 5th Respondents are necessary parties to the petition what is the claim against them The issue of relief sought against either or both of them does not arise in view of the fact that in election, the usual relief is an order to declare the petitioner winner or to nullify the election and order a fresh election in the area involved.
It does not make sense to join a party to any proceeding, except a statutory party, where no complaint is made against such party. One may ask what is the complaint against either or both of the 4th and 5th Respondents The two Respondents are mentioned in paragraphs 6, 7, 68, 92, 95, 99 and 101. In paragraphs 6 and 7, the status of the 4th and 5th Respondents were stated. In paragraph 68 to 101 the only reference to the 4th and 5th Respondents was in the phrase “officers and men of the 4th and 5th Respondents”. The said officers and men were alleged to have committed series of acts which are criminal in nature. The words “officers and men of the 4th and 5th Respondents” evoke memories of the “unknown soldiers” of Dr. Mrs. Ransome Kuti fame. See Dr. Mrs Ransome-Kuti & ors v. AG Federation & Ors (1985) 2 NWLR (Pt.6) 211.
The identities of the soldiers who were alleged to have done damage to the property of the plaintiff in the case were not issues at the trial or appeals. The criminality of the acts of the soldiers was not an issue at the trial of the civil matter or appeals arising therefrom. However, in the matter at hand, the soldiers against whom allegations of crime were made were unknown and cannot therefore be said to be the servants of the 4th and 5th Respondent in order to invoke the fiction that the master had impliedly commanded his servant to do what he did. See Iko v. John Holt & Co (1957) 2 FSC 50 page 2064 paras G-H, page 2091 paras D-E.
Appellant has not shown the basis of holding the 4th and 5th Respondent vicariously liable for the criminal acts of the un-named soldiers. But as I said earlier, the Respondents in an election petition under the Electoral Act 2010 as amended are those persons who are officers and such other persons in the service of the Commission. The 4th and 5th Respondents are neither “officers” nor “such other persons” employed by the Commission for the conduct of the election.
The second arm of Issue 1 deals with the alleged crucial findings of the Court below concerning the alleged deployment of soldiers at elections. However findings properly so-called are made in respect of an issue before the Court. The issue of deployment of soldiers or whether or not such deployment is lawful was not a matter properly before the Tribunal or the Court below as the person who made the deployment was not named. At best what the appellant dubbed crucial finding of the Court of Appeal is a comment which amounts to obiter dictum. Obiter dicta cannot be the basis for raising a ground of appeal from which an issue can be framed. The comment is not a ratio decidendi of the decision appealed against. See Ede v. Aneke (1992) 5 NWLR (Pt.424) 428 at 435, Igwe v. AICE Owerri (1994) 8 NWLR (pt.363) 549 ratio 14.
Ground 14 of the appellant’s grounds of appeal and issue purportedly raised from it are hereby struck out as incompetent. In the final result, Issue 1 (originally appellant’s issues 1 and 7) is resolved against the appellant.
Appellant’s Issues 2: Whether the Court of Appeal was right in its decision that the appellant based its petition on impeachment and therefore the decision in Omoworare v. Omisore (2010) 3 NWLR (Pt.1180) 58 was rightly applied to this case by the Court of Appeal. (Grounds 1, 4, 5 and 7) and Issue 3: Whether the Court of Appeal was right that the Appellant did not prove disqualifying ground under Section 182 (1) (e) of the Constitution of Nigeria 1999 (as amended) against the 2nd Respondent (Grounds 1, 3 and 6) were merged to form Issue 2.
Apart from the usual grounds of an election petition relating to majority of lawful votes, corrupt practices and non-compliance with Electoral Act, 2014 and Manual for Election Officials 2014 and the Constitution of the Federal Republic of Nigeria 1999 (as amended) in paragraph 35 (i-iv) of the petition appellant relied mostly on paragraph 35 (iv) hereunder reproduced:
“iv. The 2nd Respondent was not qualified to contest at the time of the election on the following grounds:
(a) The 2nd Respondent was found guilty of the contravention of the Code of Conducts by the impeachment panel set up by the Acting Chief Judge of Ekiti State on allegation of gross misconduct involving embezzlement of funds preferred against him by the Ekiti State House of Assembly consequent upon which he was impeached and removed from the office of the Governor of Ekiti State in the year 2006.
(b) The 2nd Respondent presented a forged Higher National Diploma (HND) Certificate of The Polytechnic Ibadan to the 3rd Respondent (INEC).”
My noble Lords, with profound respect to the learned Silk for the Appellant, paragraph 35 (i) (ii) (iii) appear to be peripheral matter while the petition is really predicated on paragraph 35 (iv) (a) and (b) of the petition as reproduced above. The 2nd Respondent was tried by an impeachment panel. He was found guilty of contravention of the Code of Conduct. The fact that the finding of guilt relates to the Code of Conduct does not derogate from the fact that the finding is that of the impeachment panel.
It is a play on words to say that the petitioner relies on the finding of the panel but not on the panel itself. The finding relating to the Code of Conduct is a product of the impeachment panel. On the facts herein, the appellant cannot jettison the process for the product. The process – the impeachment proceedings and the product – a finding of guilt relating to Code of Conduct must stand or fall together. It is the impeachment that gave rise to the finding of guilt.
I share the views of the Court below that the appellant based its petition on the alleged impeachment of the 2nd Respondent and this being the case, the decision of the Court of Appeal (then the ultimate Court in governorship petition appeals) in Omoworare v. Omisore (supra) was rightly applied to the facts of this case.
The second arm of Issue 2 calls for examination of Section 182 (1) (e) of the Constitution (supra). It provides:
“S.182 (1): No person shall be qualified for election to the Office of Governor of a state if (a) …….. (b) …….. (c) ………. (d)…………… (e) Within a period of less than ten years before the date of election to the Office of Governor of a State he has been convicted and sentenced for an offence involving dishonesty or has been found guilty of the contravention of the Code of Conduct.”
Now, a conviction and a sentence on one hand and a finding of guilt on the other hand are different results of proceedings before different fora. The one results from proceedings before a court properly so-called while the other is a result of proceedings before a Tribunal’ The Tribunal with powers to find anyone guilty of contravention of the code of conduct is not an impeachment panel. It is the code of conduct tribunal established under paragraph 15 (1) of the 5th schedule to the constitution of the Federation 1999 (as amended).
However, this may not be the correct position of the law. There is no provision vesting exclusive jurisdiction on the Code of Conduct Tribunal over matters of contravention of code of conducts. But this jurisdiction cannot be shared by the Code of Conduct Tribunal with an impeachment panel which is an ad hoc tribunal inferior to the code of conduct tribunal. Even if it is assumed that an impeachment panel is of the same status as the code of conduct Tribunal, can the court rely on the finding of the panel in the circumstances of this case A second question is:
What is the status of the impeachment panel that purportedly found the 2nd Respondent guilty of a contravention of the Code of Conduct It is on record that earlier, at the request of the Ekiti State House of Assembly, the Chief Judge of the State constituted a panel to investigate allegations against the 2nd Respondent. It would appeal that the House did not substantiate the allegation levelled against the 2nd Respondent and so the impeachment panel gave him a clean bill of health, as it were.
This should have ended the matter in compliance with Section 188 (8) of the Constitution (supra) which provides:
“S.188 (8): Where the panel reports to the House of Assembly that the allegation has not been proved, no further proceedings should be taken in respect of the matter.”
Contrary to the mandatory provision reproduced above, the Ekiti House of Assembly, in apparent witch hunt, procured a Judge in Ekiti State Judiciary to set up a second and unconstitutional panel to investigate the 2nd Respondent a second time. It is on record that the then Chief Justice of Nigeria wrote to the Judge to say that his purported appointment as Acting Chief Judge of Ekiti State was unconstitutional and so null and void.
It follows therefore that:
(1) The second impeachment panel was in violation of Section 188 (8) of the Constitution.
(2) The “Acting Chief” Judge who set up the panel was not appointed in accordance with relevant constitutional provisions. At the material time he was not Acting Chief Judge and he has no powers to act as one.
(3) The unconstitutionality of his purported appointment as Acting Chief Judge of Ekiti State tainted his action in that capacity with illegality and rendered all his actions in that office, including the setting up of the panel, null and void and of no factual or legal effect.
(4) The proceedings conducted by the panel was an exercise in futility, and
(5) The finding of guilt made against the 2nd Respondent is not worth the paper on which it was written.
In suspending the chief Judge of the state and purporting to appoint an Acting chief Judge for the purpose of impeaching the 2nd Respondent who had been cleared by an earlier panel, the Ekiti State House of Assembly acted with impunity and reckless abandon. The so called Acting chief Judge fared worse having sacrificed his integrity and career as a Judicial officer for a moment of fame and glory offered to him by politicians. The issue is resolved against the appellant.
I merged Appellant’s Issue 4 with his Issue 5 to constitute Issue 3. The two issues are reproduced hereunder:
“4. Whether the Court of Appeal was right in its decision that the Appellant did not prove the allegation of presentation of forged HND certificate by the 2nd Respondent to INEC. (Ground 8).
- Whether the Court of Appeal was right in its decision that the Alliance for Democracy v. Fayose (2004) All FWLR (Pt.222) 1719 at 1744-46 has settled the issue of authenticity of HND certificate presented by the 2nd Respondent to INEC (Ground 9).”
Forgery is a criminal offence and when it is an issue in any proceeding it must be proved beyond reasonable doubt.
Forgery is the noun form of the verb “forge” and to forge means, inter alia, to make a copy or an imitation of something in order to deceive people. See Oxford Advanced Learner’s Dictionary p.462. It means to fabricate by false imitation. See Black’s Law Dictionary Special Deluxe Fifth Edition p.585.
In my view, based on the definition above, to prove forgery or that a document is forged, two documents must be produced:
(1) the document from which the forgery was made, and
(2) the forgery or the forged document.
Only one document – the allegedly forged HND certificate was produced. lf it is forged, then the genuine document from which the forgery was made must exist. No such document is in evidence. It follows that the allegation of forgery of the HND certificate was not proved and consequently the appellant failed to prove the allegation that the 2nd Respondent presented a forged HND certificate to INEC.
Exhibit E is the 2nd Respondent’s HND certificate which he presented to INEC. It was issued to Oluwayose Ayodele. In Exhibit G is a personal bio-data of Oluwayose Ayodele whereas in Exhibit P the 2nd Respondent gave his name as Ayodele Peter Fayose. Based on the apparent difference in the names on the documents, appellant argued that Exhibit E was not issued to the 2nd Respondent. It was stressed that Oluwayose Ayodele in Exhibit E from Oluyole Local Government of Oyo State cannot be the same as the 2nd Respondent, Mr. Peter Ayodele.
In his argument on the issue of identity of 2nd Respondent vis-a-vis Exhibit E and Exhibit G, learned Senior Counsel for the appellant state:
“Exhibit G is a personal bio-data, particulars of one Oluwayose Ayodele, it clearly shows that Oluwayose Ayodele, if any, was from Oluyole Local Government of Oyo State.” (Underlining mine).
The mother of the 2nd Respondent testified that the two names belong to one and the same person and the way to contradict this piece of evidence is to produce another person bearing the name Oluwayose Ayodele. Appellant was not even certain that such person exists and that is apparent from the expression: “It clearly shows that Oluwayose Ayodele, if any, was from Oluyole LG of Oyo State.” This is speculation, a far cry from proof beyond reasonable doubt of the crime alleged.
The attempt to prove that the HND certificate Exhibit E was a forgery led the appellant to a different allegation of criminal act against the 2nd Respondent. The substance of the appellant’s argument is that the 2nd Respondent impersonated Oluwayose Ayodele by presenting the later’s HND certificate to INEC. Again, the person impersonated must at one time or the other be proved to have been in existence. There was no attempt to call Oluwayose Ayodele, if another person by that name exists, to testify.
As for the authenticity of Exhibit E, the HND certificate, the court below held, inter alia:
“In addition to all we have said above the authenticity of the alleged forged Higher National Diploma certificate has been settled once and for all in the lead judgment by Nsofor, JCA. In the case of Alliance for Democracy v. Fayose (2004) All FWLR (Pt.222), page 1719 at 1744-46 it was held that: the said HND certificate was earned by the present Respondent.”
The appellant cannot run away from the fact that not only was the HND certificate made an issue in the earlier case, its authenticity was canvassed and decided upon by the ultimate Court in election petition relating to Governorship election at the time. It was a final decision. As illustrated by the learned Silk for the 2nd Respondent in his brief the appellant then AD underwent a metamorphosis and became AC and finally APC.
It was the appellant in the earlier case in which the authenticity of the certificate was settled to finality and it is bound by the decision and is estopped from raising the issue in any other case. I resolve the issue against the appellant.
Appellant’s issue 6 was re-numbered Issue 4 and it reads:
Whether the Court of Appeal was right in its decision affirming the striking out of paragraph 13 of the Appellant’s Reply to the 2nd Respondent’s Reply to the petition (Ground 10).
I will set out the relevant pleadings of the parties on this issue.
Paragraph 109 of the petition reads:
“The 2nd Respondent presented a forged Higher National Diploma Certificate of The Polytechnic Ibadan to the 3rd Respondent and was thereby not qualified to contest the election and his purported election is invalid and null and void ab initio.”
In reply, the 2nd Respondent in paragraph 79 of his reply to the petition pleaded that:
“The Respondent denies paragraph 109 of the petition and states that he did not present a forged Higher National Diploma Certificate of The Polytechnic Ibadan as the Higher National Diploma presented by him to the 3rd Respondent was earned and awarded to him by the Polytechnic in 1987.”
In paragraph 13 of the petitioner’s reply, it was pleaded:
“In specific response to paragraph 79 of the 2nd Respondent’s reply, the Petitioner avers that the certificate issue by The Polytechnic Ibadan to one Peter Ayodele Oluwayose if any, was earned and awarded to an indigene of Oyo State from Oluyole Local Government. The Petitioner will at the trial rely on the admission form, transcript and other relevant documents.”
My noble Lords, appellant’s case in paragraph 109 of the petition is limited to a presentation of forged HND certificate of The Polytechnic Ibadan to the 3rd Respondent, INEC, an assertion which the 2nd Respondent denied, adding that he earned the certificate and that the same was awarded to him by the institution in 1987. However, paragraph 13 of the appellant’s reply has introduced a completely new dimension to the case the 2nd Respondent has to meet.
It is now a case of impersonation in which the 2nd Respondent was alleged to have presented a certificate issued to another person as his own. Far from being a reply to paragraph 79 of the 2nd Respondent’s reply to the petition, paragraph 13 of the Appellant has introduced impersonation as a fresh issue without compliance with the rules and it was properly struck out by the Tribunal and the Court below rightly affirmed the decision of the Tribunal. The issue is resolved against the appellant.
All the issues having been resolved against the appellant, the appeal is devoid of merit and it is my order that the same be, and is hereby, dismissed in its entirety.
PRELIMINARY OBJECTIONS AND CROSS/APPEALS:
The preliminary objections are ignored in order to determine the appeal and cross/appeal on the merit.
The resolution of issues in the main appeal impacted on the issues in the cross-appeals. There is therefore no need to deal with them in details.
I think that the procedure of impeachment should be modified in a manner that would protect the mandate given by the electorate and to ensure that a governor who is impeached and removed from office does not contest the election to return to the exalted office for which he was found unworthy.
The signatures of a simple majority of those who voted at the election should back the allegations of gross misconduct against the governor before a panel can be set up to investigate same. The same process should be followed in approving the result of the panel. Once the governor is removed he should be charged to Court and if convicted, he should be banned from contesting any election. This will ensure that the Legislature does not engage in forum shopping to secure a panel that will find in its favour. It will ensure that once a person is found unworthy, he does not return to desecrate the exalted office of State Governor.
Appeal dismissed. The judgment of the Court below which endorsed the judgment of the trial Tribunal is affirmed.
The issues raised in the cross-appeals have been resolved in the main appeal.
Parties to bear their respective costs.
SC.113/2015
