Adeleke Fariu Arebi V. Ibraheem Adebola Moshood Gbabijo & Ors. (2008)
LawGlobal-Hub Lead Judgment Report
ADZIRA GANA MSHELIA, J.C.A.
This is an appeal against the decision of the National Assembly/Governorship and Legislative Houses Election Tribunal, Lagos State sitting at Lagos delivered on 23rd day of October, 2007 dismissing the petition filed by the Petitioner (hereinafter referred to as appellant).
The facts of this case are simple: The appellant and the 1st respondent were candidates together with one other contestant in the recently concluded National Assembly Elections into the House of Representatives for Epe Federal Constituency of Lagos State. The appellant contested the election on the Platform of the PDP (Peoples Democratic Party) while 1st respondent contested on the Platform of the AC (Action Congress). At the conclusion of the election held on the 21st day of April, 2007, 1st respondent was returned by 2nd – 4th respondents as duly elected having scored the highest lawful votes of 26,757 as against the appellant who scored 20,940 votes.
Not being happy with the result declared, the appellant filed a petition against same before the Lagos State National Assembly/Governorship and Legislative Houses Election Tribunal on the 21st day of April, 2007. Issues were joined by the respondents in their pleadings. The 1st respondent filed a reply to the petition dated 19th of July, 2007, while 2nd – 4th respondents similarly filed their joint reply dated 15th day of June, 2007. After the preliminaries, the Tribunal set the petition down for hearing. The appellant called four witnesses including himself (PW1 – PW4) while the 1st respondent called five witnesses including himself (DW1 – DW5). 2nd – 4th respondents did not call any witness. At the conclusion of the hearing, final addresses were filed, exchanged and adopted. The Tribunal in a reserved and considered Judgment held at page 412 of the record as follows:-
“On the whole, we found that the petition lacks merit in its entirety and on all grounds is hereby dismissed.
The election and return of the 1st Respondent IBRAHIM ADEBOLA MOSHOOD GBABIJO as a member of the House of Representatives representing EPE FEDERAL CONSTITUENCY, in Lagos State is hereby affirmed.”
Aggrieved with this decision appellant filed his Notice of Appeal on the 7th day of November, 2007 containing 10 grounds of appeal.
In compliance with the Practice Direction 2007 appellant filed his brief of argument on the 6th of December, 2007, while 1st respondent filed his brief on the 14thof December, 2007. The 2nd – 4th respondents filed their brief on the 22nd day of February, 2008 but same was deemed properly filed on the 5th day of March, 2008.
When the appeal came up for hearing the briefs filed were adopted and relied upon by respective counsel.
From the 10 grounds of appeal filed, appellant distilled 7 issues for determination in this appeal.
The issues are:-
1) Whether there was any evidence to support the findings of the lower Tribunal that exhibits ‘B’ and ‘B1’ are choate, genuine, valid, issued by the signing authority and belonged to the 1st Respondent (Grounds 1 & 2).
2) What is the proper interpretation of Section 66(1)(i) of the 1999 Constitution? Whether the lower Tribunal was correct in invoking the provision of section 465 of the Criminal Code in considering an infraction of Section 66(1)(i) of the 1999 Constitution (Ground 3)
3) Having regard to the cogent evidence of the Petitioner or the irreconcilable contradictions in exhibits ‘B’ and ‘B1’ in their strange features and their source of issuance, whether the lower Tribunal had any material before it to come to the finding that an evening school operated in LASCA which the 1st Respondent attended (Ground 4 & 5).
4) Whether exhibit ‘M’ was properly admitted under a Subpoena Duces Tecum AND PASSED THE TEST OF SECTION 91(3) OF THE EVIDENCE ACT (Ground 6).
5) Whether there was any evidence or facts pleaded contained in exhibit ‘M’ to support the findings that there was an adult education centre in LASCA and that the Lagos State Ministry of Education issued exhibits ‘B’ and ‘B1’ to the 1st Respondent (Ground 8).
6) What is the standard of proof required in proof of an infraction of Section 66(1)(i) of the 1999 Constitution and whether the evidence adduced by the petitioner attained that standard (Ground 7).
7) Whether the lower tribunal was right in law to have hypothetically provided reason for the missing attestation form and failing to evaluate the evidence on failure to swear the attestation form (Grounds 9 & 10).
1st Respondent on the other hand formulated 5 issues for determination in this appeal.
The issues are:-
- Whether the lower Tribunal was right when it held that the 1st respondent was educationally qualified to contest the election into the Federal House of Representatives in Epe Federal Constituency on the 21st of April, 2007 (Ground 1).
- Whether on the facts of this case the lower Tribunal was right in holding that the Petitioner did not prove beyond reasonable doubt that exhibits ‘B’ and ‘BI’ were forged (Ground 2).
- Whether or not the 1st Respondent presented forged Certificates to the Independent National Electoral Commission (Ground 3).
- Whether on the facts of this case the lower Tribunal was right when it held that the 1st Respondent properly completed and attested to form CF 001 Exhibit 1 and 1A (Ground 9).
- Whether the election of the 1st Respondent into the House of Representatives as representing Epe Federal Constituency was conducted in substantial conformity with the provisions of the Electoral Act 2006 (Ground 10).
The 2nd – 4th respondents similarly, formulated, three issues for determination in this appeal. The issues read as follows:-
2.1 Whether the lower Tribunal was right in invoking the provisions of Section 465 of the Criminal Code in considering an infraction of Section 66(1)(i) of the 1999 Constitution thereby holding that the petitioner did not prove beyond reasonable doubt that exhibits ‘B’ and ‘B1’ were forged. (Grounds 1, 2, 3, 4, 5 and 6).
2.2 Whether the lower Tribunal was right when it held that the 1st Respondent properly completed and attested to Form CF001 (Exhibits 1 and 1A) (Ground 7).
3.3 Whether on the facts of this case, the lower Tribunal was right when it held that the elections of Epe Federal House of Representatives on 21st April, 2007 was conducted in substantial compliance with the Electoral Act, 2006 (Grounds 8, 9 and 10).
I find it necessary to first resolve the oral objection raised by Mr. Otuoniyo appellant’s counsel in the course of hearing the appeal as to the competency of 1st respondent’s brief of argument. Appellant’s counsel contended that 1st respondent filed his brief out of time. The appellant’s brief was served on the 1st respondent on 7/12/07 and he had 5 days as stipulated by the Practice Direction No 2 of 2007 within which to file his brief of argument. 1st respondent however, filed his brief on 14/12/07 which was more than 5 days. The effect is that there was no brief as such learned counsel urged the court to determine the appeal strictly on appellant’s brief and 2nd – 4th respondents brief only.
In response 1st respondent’s counsel Mr. Abudu contended that the 1st respondent’s brief was not filed out of time. Learned counsel contended that under the Practice Direction 1st respondent has five days within which to file respondent’s brief. The computation of five days as provided under the interpretation Act excludes Saturday and Sunday because the time granted to the 1st respondent is less than seven days.
Similarly, the days of service will be excluded in computation of time. Learned counsel maintained that 1st respondent’s brief was not filed out of time. The brief dated 13/12/07 and filed 14/12/07 was filed within time. He urged the court to overrule the objection.
Mrs. Osagie 2nd – 4th respondent’s counsel on the other hand submitted that 1st respondent’s brief of argument was filed within time. She similarly, urged the court to overrule the objection. Paragraph 7 of the Practice Direction No 2 of 2007 provides that Respondent shall file in the court and serve on the Appellant, his own brief within five days upon receipt of appellant’s brief. A careful perusal of the affidavit of service duly endorsed by the bailiff Mr. K.A. Mustapha on 10/12/07 showed that appellant’s brief was served on the 1st respondent on 7/12/07 and 1st respondent filed his brief of argument on 14/12/07.
I agree with the submission of 1st respondent’s counsel that the five days period referred to includes Saturday and Sunday. Since there is no clear provision in the Electoral Act 2006, the first schedule thereto and Practice Direction No 2 of 2007 made with terminology of a holiday. See the Court of Appeal decision in Kaugama Vs N.E.C. (1993) 3 NWLR (Pt 284) 681 at 710.
In the instant case if Sunday is excluded being a holiday then the five days allowed will end on 13/12/07 and not 14/12/07. Although 1st respondent’s brief is dated 13/12/07, it is the date of filing which is 14/12/07 that is relevant. In a matter concerning computation of time, the date the brief was prepared is not important or relevant because time does not start running from that date. The important date is the date of filing the brief. Time starts to run from that date. See Eke Vs Ogbonda (2007) 6 WRN 1. It is therefore evident that 1st respondent’s brief was filed a day out of time.
A brief filed outside the time limit allowed by the Practice Direction is incompetent and is of no legal effect. Practice Direction are meant to be strictly complied with being rules of court. The Court of Appeal in Jimoh Ojugbele Vs Musafin O. Lanudi & Ors (1999) 10 NWLR (Pt 621) 167 at 171 had this to say:-
“The Practice Direction of this court as a rule of court must be complied and not circumvented and no favour should be shown for not obeying same.”
See also Barr Ladipo vs Hon. Oduyoye & Ors (2004) 1 EPR 707. I will accordingly sustain the objection raised by appellant’s counsel. Consequently, 1st respondent’s brief will be discountenanced and this appeal will be determined only on the appellant’s and 2nd – 4th respondents’ briefs of argument.
In determining this appeal I shall adopt the issues formulated by the appellant as they cover all the grounds of appeal. I will however, take note of the issues formulated by the 2nd – 4th respondents. I am also of the view that questions raised in the appellant’s issues 2 and 6 can safely be discussed together. Similarly, issues 4 and 5 and 1 and 3 can be discussed together, while issue 7 can be treated separately.
The questions raised in appellant’s issues 2 and 6 are whether the lower tribunal was correct in invoking the provisions of section 465 of the Criminal Code in considering an infraction of section 66(1) (i) of the 1999 Constitution and what is the standard of proof required in proof of the infraction of section 66(1) (i) of the Constitution. Appellant’s counsel contended that by the ordinary, clear and unambiguous meaning of section 66(1)(i) of the 1999 Constitution to infract the condition for qualification for election into the Senate or House of Representatives, all the violator or infractor need to is to present a forged Certificate to Independent National Electoral Commission. It is irrelevant for the infraction who forged the certificate presented or from what source the forged certificate came from. Learned counsel contended that 1st respondent admitted presenting Exhibit ‘B’ and ‘B1’ first in 1999 and second 2007 to INEC in part compliance for his nomination to the Lagos State House of Assembly and Federal House of Representatives. These facts of presentation were also endorsed on the INEC form CF 001 – Exhibit ‘1’. It was further contended that by their finding at page 402 of the record the Tribunal misconstrued the section 66(1)(i) of the 1999 Constitution by equating the proof thereof to the proof required in a Criminal act of forgery as stipulated in section 465 of the Criminal Code. The lower tribunal concerned itself with the forged documents which by the evidence adduced even was proved beyond reasonable doubt and left unevaluated the only ingredient of the infraction of section 66(1) (i) of the Constitution which is the presentation of a forged certificate.
Furthermore, learned counsel contended that the issue of forgery was not directly in issue in the proof of section 66(1)(i) of the Constitution. The lower tribunal relied on section 138(1) of the Evidence Act. This court gave vent to the Judicial Interpretation of section 138(1) in Adetoro vs Ogo-Oluwa (2002) 9 WRN 149 at 189 – 190 and Arowolo Vs Ifabiyi (2002) 19 WRN 111 at 129. In Arowolo Vs Ifabiyi supra at page 129 the Supreme Court per Iguh JSC succinctly clarified section 138(1) of the Evidence Act as follows:-
“……..The application of the provision of section 138 of the Evidence Act only comes into play where the Commission of a crime by a party is directly in issue in any proceedings, civil or criminal and not otherwise……..”
The complaint of infraction of section 66(1)(i) of the 1999 Constitution did not directly put the commission of forgery in issue, there was therefore no necessity to prove it. Counsel contended that the standard of proof required in proof of section 66(1) (i) of the 1999 Constitution is as in civil cases on balance of probabilities encapsulated in section 137 of the Evidence Act and plethora of authorities. Learned counsel submitted that there is sufficient evidence to allow this appeal especially as there is nothing placed before the lower tribunal by 1st respondent to tilt the imaginary scale even though lightly in favour of the 1st respondent. The arguments canvassed by 2nd – 4th respondent’s counsel in respect of issue 1 are relevant to the issues under consideration. The 2nd – 4th respondents’ counsel on her part contended that what section 66(1) (i) of the 1999 Constitution is searching for is “a forged certificate”. Learned counsel asked the question whether Exhibit ‘B’ and ‘B1’ are forged? She said when the question is answered in the affirmative then there can be said to be an infraction of section 66(1) (i) of the Constitution. A document must be certified forged before it can be presented as forged. Learned counsel referred to the definition of forgery as provided under section 465 of the Criminal Code. It was further submitted that going by the simple meaning of forgery as defined in section 465 of the Criminal Code the documents in question do not fall within the ambit of forgery. Learned counsel contended that all the evidence adduced and witnesses called during trial at the tribunal, all point to one thing i.e that the documents Exhibit ‘B’ and ‘B1’ were not forged. Counsel referred to the testimony of PW1, the lst respondent and Mrs. Awoyinfa, Director from Lagos State Ministry of Education. 1st respondent led evidence that he attended an Adult Education Centre at Lagos Secondary Commercial Academy, Ilupeju between 1975 – 1978 and upon completion Exhibit ‘B’ and ‘BI’ were issued to him and others who attended the Programme by Lagos State Ministry of Education. See page 256 of the record. Learned counsel contended that Ist respondent never led evidence or claimed that he attended Lagos Secondary Commercial Academy as a regular student.
It was further contended that Exhibit ‘M’ tendered through DW3 Director Higher Education confirmed that the Centre existed and Lagos State Ministry of Education issued the Certificates. The certificates bear the heading Ministry of Education as such the certificates do not qualify as forged documents, counsel relied on the case of Michael Ama Nnachi Vs Hon. Irem Ibom (2004) 1 EPR 789 at 800 where this court in dealing with a similar issue of presenting forged certificate held that appellant did not prove beyond reasonable doubt that the said certificate presented was forged. Learned counsel submitted that the offence of presentation of forged document in section 66(1)(i) of the 1999 Constitution is never established until the court is satisfied beyond reasonable doubt that the document in question is forged. She urged the court to hold that a proper consideration of the offence of forgery is necessary to consider an infringement of section 66(1) (i) of the Constitution.
Appellant’s case before the lower tribunal is in the main, an allegation of an infraction of section 66(1) (i) of the 1999 Constitution of the Federal Republic of Nigeria. Section 66(1) (i) provides as follows:-
“(1) No person shall be qualified for election to the Senate or House of Representatives if:-
(a) x x x
(b) x x x
(c) x x x
(d) x x x
(e) x x x
(f) x x x
(g) xxx
(h) x x x
(i) He has presented a forged certificate to the Independent National Electoral Commission.”
The allegation was that 1st respondent submitted forged certificates
to Independent National Electoral Commission. For purposes of clarity and emphasis I will reproduce paragraph 3, (a), (b) and (c) of the petition which appeared at pages 1 and 2 of the record. Paragraph 3 (a) (b) and (c) read thus:-
“(3)Your Petitioners (sic) state that the said Ibraheem Adebola Moshood Gbabijo was not qualified at the time of election educationally to have contested the election the 1st respondent not having been educated up to School Certificate level and/or presented a forged School Leaving certificate.
(a) The 1st Respondent presented a forged School Leaving certificate and Testimonial of one Lagos Secondary Commercial Academy Centre as evidence of his secondary education but failed to present any results, or certificate stating his attainment of West African School Certificate or its equivalent as claimed in the so-called Certificate and Testimonial. (b) Lagos Secondary Commercial Academy Centre which the 1st respondent claimed to have attended but never recognized and approved by the Lagos State Ministry of Education neither did the 1st respondent attend or sit for any WASC Exams in the school thereafter in 1978,”
(c) The 1st respondent presented a forged school leaving certificate and Testimonial and made false but untenable declaration on page 2 of his INEC Form CF 001 (affidavit in support of Personal Particulars into the House of Representatives and nomination form EC4.3(iv) in contravention of section 65(2) of the 1999 Constitution of the Federal Republic of Nigeria and section 109 (d) of the Electoral Act 2006,”
‘Forgery’ is recognized in the Criminal Code as a crime and the very nature of the act is contained in section 465 of the said Criminal Code the provision of which stipulates thus:-
“A person who makes a false document or writing knowing it to be false, and with intent that it may be used or acted upon as genuine to the prejudice of any person or with intent that any person may in the belief that it is genuine, be induced to do or refrain from doing any act whether in the state or elsewhere is said to forge the document or writing,”
In Black’s Law Dictionary 7th Edition, forgery is defined as the act of fraudulently making a false document or altering a real one to be used as if genuine. The following appear in this definition:-
“While it is true that there is a distinction between fraud and forgery, and forgery contains some elements that are not included in fraud, forgeries involves the making, altering or completing of an instrument by someone other than the ostensible maker or drawer or agent of the ostensible maker or drawer. 37 C.J.S. Forgery 2 at 66 (1997)”.
From this definition it goes beyond speculation, to say that to accuse or allege that a person or persons, forged or presented a forged document, is a crime or a criminal offence. I have no doubt in my mind, that the allegation of the appellant against the 1st respondent, was/is an accusation of the committal of a criminal offence and I so hold. I am therefore of the humble view that the Tribunal was absolutely correct to have invoked the provisions of section 465 of Criminal Code when considering an infraction of section 66(1) (i) of the Constitution.
What is the standard of proof required in proof of an infraction of section 66(1)(i) of the 1999 Constitution. The burden of proving the allegation that 1st respondent presented a forged Certificate was on the appellant for he made the assertion which the law says he must prove. A careful perusal of paragraph 3(a) (b) & (c) of the petition reproduced supra clearly shows that the issue of crime has arisen directly from the pleadings and it formed the basis or foundation of the petition, so the petitioner or the appellant must prove the commission of the crime beyond reasonable doubt as required by section 138(1) of the Evidence Act Cap 112 Laws of the Federation of Nigeria 1990. Section 138(1) provides as follows:-
“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.”
It amounts to this therefore:.
(1) that the allegation must be made to a party to the case; and
(2) that the commission of the crime shall be directly in issue, or in other words, that it is the commission of the crime that must be proved, before the plaintiff or the petitioner (as in this case) could succeed in his action.
The allegation of forgery was made against the 1st respondent. He was the accused person. Contrary to the submission of appellant’s counsel, I am of the humble view that the commission of crime is directly in issue. The standard of proof cannot therefore be on the balance of probabilities but beyond reasonable doubt. I am fortified by the decision of this court in Imam Vs Sheriff (2005) 4 NWLR (Pt 914) 80 at 164. In that case the petitioner alleged that 1st respondent presented forged certificate as genuine for the purpose of making INEC (Independent National Electoral Commission) to believe he was qualified to stand for gubernatorial election in Borno State. At the end of the trial before the Election Tribunal the Tribunal found that the commission of crime was directly in issue as such the standard of proof must be beyond reasonable doubt. On appeal, this court stated that the Tribunal was on firm ground when it held that the standard of proof was beyond reasonable doubt.
In another related case Nnachi vs Hon. Iborn, INEC & Ors (2004) 1 EPR 786 at 800 this court similarly observed as follows:.
“It is the petitioner who alleged forgery of the stated certificate. He has the abiding onus to prove same beyond reasonable doubt as directed by section 138(1) of the Evidence Act Cap 112 Laws of the Federation of Nigeria, 1990.”
See also Bayo Vs Njida (2004) 8 NWLR (Pt 876) 544; Jang Vs Dariye (2003) 15 NWLR (Pt 843) 436; Nwobodo Vs Onoh (1984) 1 SC 1 and Omoboriowo Vs Ajasin (1984) 1 SCNJ 108. All these authorities express the settled principle of law that where an allegation of the commission of crime is directly in issue in any proceeding civil or criminal it must be proved beyond reasonable doubt. See section 138(1) Evidence Act reproduced supra.
From all that I have said above, my conclusion on this issue is that the Tribunal was on firm ground when it held that the standard of proof required to establish an infraction of section 66(1)(i) of the 1999 Constitution is proof beyond reasonable doubt.
In resolving issues 4 and 5, I would first of all want to determine the status of Exhibit ‘M’, Appellant’s counsel in his brief of argument contended that the document was not properly admitted under section 192 and 193 of the Evidence Act. He said DW3 was merely called to produce the document and not tender it. It was also contended that DW3 is an interested party within the con of section 91(1)(3) of the Evidence Act Cap 112 Laws of the Federation 1990. Learned counsel relied on the following cases: Adetutu vs Ogo-Oluwa (2002) 9 NRN 149; Miss Ihuoma Nwanga 7 Anor Vs Mrs. E. Ugbara E. U. Uzoma Uhadan & Anor (1997) 10 NWLR (Pt 526) 559 at 572 and Anyachesi vs R.T. Briscoe Nigeria Ltd (1987) 3 NWLR (Pt 59) 84. Though Exhibit ‘M’ was not objected to in the lower court relying on the case of Egbaran Vs Akpotor (1997) 7 NWLR (Pt 559) at 570. Learned counsel urged the court to expunge same.
The 2nd – 4th respondent’s brief did not contain any response on this issue.
Exhibit ‘M’ is a letter written and signed by one Mrs. Winfred Awoyinfa a Director of Higher Education in the Lagos State Ministry of Education dated 20th July, 2007. She was issued with subpoena duces tecum. She produced the letter and same was tendered and admitted as exhibit ‘M’. By the combined reading of sections 192 and 193 of the Evidence Act, any person whether a party or not in a cause may be summoned to produce a document without being summoned to give evidence and if he caused such document to be produced in court, the court may dispense with his personal attendance. Thus a person summoned to produce a document does not become a witness by the mere fact that he produces it and cannot be cross-examined until he is called as a witness. It then remains for the party at whose instance the subpoena was issued to have it admitted in evidence by tendering it through a person who has capacity to do so. In other words the person subpoenaed to court to produce a document merely places the document before the court where they could be identified and made use of by witnesses.
The word ‘produce’ is not synonymous with ‘tender’, it means, not more than ‘bring forward’ or to ‘bring out’ or to ‘put on stage’. See Ogunyinka Vs Okudo (1970) 3 LRN 318 at 322, 1979 6 – 9 SC 32.
The letter or exhibit ‘M’ was properly produced before the court through the maker Mrs. W.A. Awoyinfa who was referred to as DW3. She was unsworn and was not cross-examined. The Tribunal was however; wrong to allow the 1st respondent’s counsel to tender the document through DW3 without making her a witness. Other parties ought to be given opportunity to cross-examine her on the document. This procedure violates the rules of fair hearing. Proper foundation was not laid for the admissibility of the document as exhibit. I agree with the submission of appellant’s counsel that exhibit ‘M’ was not properly admitted in evidence under sections 192 and 193 of the Evidence Act and I so hold that same will be discountenanced in determining this appeal. I wish to note that had it been the document was not produced in compliance with the subpoena duces tecum, DW3 is the proper person to tender it being the maker. See Flash Fixed Odds Ltd Vs Akahugba (2001) 9 NWLR (Pt.717) 46 at 63.
Having taken the stand that exhibit ‘M’ was not properly admitted in evidence I do not find it necessary to resolve the remaining complaint relating to exhibit ‘M’. I agree with the submission of appellant’s counsel that he is entitled to challenge the admissibility of a document on appeal even where it was not objected to before the lower court. See Egbarao vs Akpotor supra.
As regards issues I and 3 the question to be resolved is whether having regard to the evidence adduced, the Tribunal was right when it held that appellant did not prove the allegation of forgery beyond reasonable doubt.
Appellant’s counsel contended that to prove the authenticity or otherwise of the Certificates, the studentship, and claims in the certificates, there was only one primary source to go to, hence the summoning of the current headship of the college which purportedly issued the certificates. It was contended that PW1 gave far reaching cogent and unchallenged evidence that the purported recipient of exhibit ‘B’ and ‘B1’ is unknown to the school records and that the certificates were not issued by the school. The testimony of PW1 proved that exhibit ‘B’ and ‘B1’ are forgeries. Learned counsel contended that Tribunal did not properly evaluate the evidence adduced before it. That it abandoned its sacred duty. See Alhaji Saratu Adeleke & ors Vs Sanusi Yanda & Ors (2001) 28 WRN 1 at 15. It was further contended that the burden of proof in rebuttal, especially against the background of his pleaded evening classes laid squarely on the 1st respondent. See Friday Elema & Anor Vs Princess Christy Akenzua 2 SC QNR 1245 at 1258.
As earlier stated in this judgment it was appellant who made the assertion that 1st respondent presented forged certificates to INEC (Independent National Electoral Commission) i.e. Exhibit ‘B’ Secondary School Certificate and ‘B1’ school leaving certificate and Testimonial. The position of the law is that a party who pleads and asserts the existence of a fact bears both the onus and the burden of proof. See Hon. John O. Lasoghon Vs Prince Ademola of Lakode & ors (1999) 11 MWLR (Pt 625) 543 at 558. It was therefore the appellant and not the 1st respondent who had the burden of establishing the allegation by the deduction of credible and compelling evidence before the Tribunal. See Mr. Elam Mbukurta Vs Alhaji Ahmed A. Albo & 5 Ors (1998) 6 NWLR (Pt 554) 456 at 463.
Appellant’s contention was that the testimony of PW1 proved that exhibit ‘B’ and ‘B1’ are forgeries. PW1 testified that the name of the 1st respondent did not appear in the record of the school LASCA and the stamp and signature on Exhibit ‘B’ and ‘B1’ are not of the school LASCA (Lagos Secondary Commercial Academy). 1st respondent led evidence that between 1975 – 1978 he attended Adult Secondary Evening School organized by Lagos State Ministry of Education and Lagos Secondary Commercial Academy was used as a centre. He dropped out of class V and Ministry of Education issued him with Exhibit ‘B’ and ‘B1’.
For appellant to succeed he must plead the particulars of forgery and also prove the components beyond reasonable doubt.
In Omoboriowo Vs Ajasin (1984) 1 SCNLR 108 and 131 the apex court stated as follows:-
“Fraud and Crime must be strictly pleaded and details or particulars sufficient to found a proper charge given to warrant the issue being investigated by the court.”
The above statement clearly includes forgery. I have carefully examined all the nine paragraphs of the Petition, I am however of the humble view that the particulars of forgery were not clearly spelt out as required, bearing in mind the definition of forgery contained in section 465 of the criminal code.
In proving forgery one has to take into account the ingredients of the offence. “Forgery is defined as a person who makes false document or writing knowing it to be false and with intent that it may be used or acted upon as genuine …. ” Where is the evidence which confirm that 1st respondent made exhibit ‘B’ and ‘B1’ with knowledge that they are false documents? Is it Ministry of Education Lagos State that should be held responsible for committing forgery who according to 1st respondent issued the certificates? From the available evidence the source of exhibit ‘B’ and ‘B1’ is doubtful but it is clear from the pleadings that parties joined issues on forgery and not falsification. All the anomalies raised by appellant must be proved beyond reasonable doubt. The appellant has an uphill task to prove that 1st respondent forged the certificates i.e. exhibits ‘B’ and ‘B1’ respectively.
Appellant’s counsel made heavy weather as regards the change of name reflected on the certificates. The mere fact that different names appeared on the certificates is not conclusive proof that the certificates are forged. If the appellant is alleging that 1st respondent forged the name or names of the true owner of the certificates or credentials in those documents submitted to INEC for his clearance as qualified to contest the election, then, in my view, it behoves of the appellant to prove the forgery. It is pertinent to note the observation of his Lordship Nsofor JCA, in AD Vs Fayose (2005) 10 NWLR (Pt 932)151 at 193 where he stated as follows:-
“Of what concern or to whom does it matter if ‘A’ chooses to be called or known by many or very many names? I confess that I know of no legislation or Decree in Nigeria restricting any person(s) to a number of names he may be called or known by”.
Similarly, the testimony of PW1, confirmed the existence of Lagos Secondary Commercial Academy now Ilupeju College. Also his testimony under cross-examination did not confirm or deny the existence of an Adult Education Centre at LASCA between 1975 and 1978. At pages 274 – 275 of the record PW1 stated as follows:-
“I agree that the Respondent claimed that he was in the Secondary School from 1975 – 1978. I was not at LASCA between 1975 to 1978 – I am aware that the Lagos State Government has Adult Education Programme and was run by the Lagos State Government. I know there are designated centre in schools but not all are in secondary schools. I cannot know whether LASCA was a designated centre for Adult Education Programme between 1975 to 1978. I will not know how the exhibits ‘B’ and ‘B1’ were issued. I confirm that the Records of Studentship at LASCA were those of regular students. When I joined LASCA, there was no trace of anything concerning Adult Education. I met record of regular students ….. “.
Apart from the testimony of PW1 and Appellant no other witness testified on issue of forgery on behalf of the appellant. Having regard to the available evidence adduced by the appellant, I am of the humble view that there is no cogent and credible evidence to show that 1st respondent forged exhibit ‘B’ and ‘B1’. The ingredients that constitute forgery have not been established by the appellant. It is a criminal allegation as such the burden remains on the appellant to prove the alleged forgery beyond reasonable doubt. The burden does not shift on the 1st respondent. From the totality of the evidence adduced I am of the firm view that appellant had failed to discharge the burden of proving the allegation of forgery beyond reasonable doubt.
It is well settled Law that where an alleged crime has not been proved beyond reasonable doubt, any and all possible doubts must be resolved in favour of the person accused of committing such crime. See Kalu v. State (1988) 4 NWLR (Pt 90); Okoji vs. State. (1987) 1 NWLR (Pt 52) 659 at 620 and Imam Vs Sheriff supra. The Tribunal was therefore on firm ground when it held that appellant did not prove the allegation of forgery beyond reasonable doubt. I am mindful of the fact that exhibit ‘M’ is no longer relevant in the determination of this appeal. I wish to point out that although the Tribunal appears to have given weight to the document its exclusion in my humble view did not alter the stand of the Tribunal. The contents of exhibit ‘M’ neither confirmed nor denied the existence of Adult Education Centre. What appellant is required to prove is whether the certificates presented to INEC by 1st respondent are forged certificates. As stated the facts and evidence led by the appellant in this case fall short of the standard of proof of crime i.e. beyond reasonable doubt.
The next question to resolve is whether 1st respondent is educationally qualified for election as member of the House of Representatives. The provisions of section 65 of the 1999 Constitution is made subject to section 66 of the Constitution. Section 65 reads thus:-
“65(1) Subject to the provisions of section 66 of this constitution, a person shall be qualified for election as a member of-
(a) The Senate, if he is a citizen of Nigeria and has attained the age of thirty five years; and
(b) The House of Representatives if he is a citizen of Nigeria and has attained the age of thirty years;
(2) A person shall be qualified for election under sub-section (1) of this section if-
(a) he has been educated up to at least school certificate level or its equivalent; and (b) he is a member of a political party and is sponsored by that party.”
Section 109 of the Electoral Act 2006 is also relevant. Section 109(d) provides as follows:-
“A person shall be qualified for election under this part of this Act if he:
(d) is educated up to at least the school certificate level or its equivalent.”
It is also necessary to read section 65(2)(a) of 1999 constitution together with section 318(1) of the constitution. The word “school certificate” or its equivalent has been defined as follows:-
(a) A Secondary School Certificate or its equivalent, or Grade II Teacher’s Certificate, the City and Guilds Certificate; or
(b) Education up to Secondary School Certificate level, or
(c) Primary six school leaving certificate or its equivalent and-
(i) Service in the Public or Private Sector in the Federation in any capacity acceptable to the Independent National Electoral Commission for a minimum often years and
(ii) Attendance of courses and training in such Institutions as may be acceptable to the Independent National Electoral Commission for periods totaling up to a minimum of one year, and
(iii) The ability to read, write, understand and communicate in the English Language to the satisfaction of the Independent National Electoral Commission; and
(d) Any other qualification acceptable by the Independent National Electoral Commission.”
As earlier stated appellant failed to prove that Exhibit ‘B’ and ‘B1’ are forged documents which means they are taken as genuine. It is in evidence that 1st respondent submitted his credentials to INEC and he was cleared to contest the election into the House of Representatives. INEC was satisfied with his educational qualification. Apart from attending Adult Education Centre up to class V, 1st respondent also obtained a National Business Certificate at Moshood Abiola Polytechnic Ikeja Lagos which DW1 confirmed is a higher qualification. It is also in evidence that 1st respondent used the same certificates in 1999 to obtain clearance from INEC to contest the election into the House of Assembly. Furthermore, it is not a requirement that a person must pass the secondary school certificate examination or its equivalent. Relevant authorities on this point are: Baro Vs Njida (2004) 1 NWLR (Pt. 876) 544 and Imam Vs Sheriff (2005) 4 NWLR (Pt 914) 43. In Baro Vs Njida supra the Court of Appeal at page 630 observed as follows:-
“In other words, as regards a secondary school certificate level, one does not have to pass the secondary certificate examination. It is enough in my view that one attended a secondary school and reading up to the secondary school certificate level, i.e. without passing and obtaining the certificates.”
Thus what is required under the law is that there must be evidence that a candidate is educated up to the required level and not that he must produce a certificate to that effect. I therefore find nothing wrong with the finding of the Tribunal at page 401 of the record that 1st respondent was educationally qualified to contest the House of Representatives Election which took place on 21st April, 2007.
I would now proceed to consider the last issue which is issue 7. What was pleaded in paragraph 4 of the petition relate to matters precedent to the holding of the election. Paragraph 4 provides thus:-
“4. The 1st Respondent failed or refused to swear the INEC form CF001 on oath as prescribed by section 32 of the Electoral Act 2006 and should have his nomination to contest the election nullified by reason of non-compliance with the Electoral Act 2006 and the 1999 constitution of the Federal Republic of Nigeria.”
In deciding whether the step taken by the Tribunal in resolving the complaint on merit is proper there is need to refer to the provisions of section 32(4) of the Electoral Act which provides as follows:-
“32(4) Any person who has reasonable grounds to believe that any information given by a candidate in the affidavit is false may file a suit at the High Court of a State or Federal High Court against such person seeking a declaration that the information contained in the affidavit is false.”
The requirement that any person intending to be a candidate at an election should file an affidavit with the commission is provided for in section 32(1) and (2) of the same Electoral Act, 2006. For clarity section 32(1) and (2) is reproduced hereunder:-
“(1) Every Political Party shall not later than 120 days before the election under the provisions of this Act, submit to the commission in the prescribed forms the list of the candidates the party proposes to sponsor at the elections.
(2) The list shall be accompanied by an affidavit sworn to by each candidate at the High Court of a state indicating that he has fulfilled all the Constitutional requirements for election into that office.”
It is clear from the above provisions that questions relating to the qualifications of a candidate and other information that the Commission may require from a potential candidate are expected to have been declared in the appropriate form duly prescribed and such facts are to be accompanied by an affidavit sworn to by each candidate at the High Court of a State. The complaint relating to giving false information in an affidavit or failure to attach affidavit to INEC FORM CF001 are matters which an aggrieved person could either petition the Commission or Institute an action at a state High Court for a relief. Such matters are specifically excluded from the jurisdiction of an election Tribunal. The jurisdiction of the Tribunal in relation to election matters is clearly defined under section 285(2) of the 1999 Constitution. Section 285(2) provides:- “There shall be established in each State of the Federation one or more election Tribunals to be known as the Governorship and Legislative Houses Election Tribunals which shall, to the exclusion of any court or tribunal have original jurisdiction to hear and determine petitions as to whether any person has been validly elected to the office of Governor or Deputy Governor or as a member of any legislative house.”
By this provision election Tribunal is only given exclusive power to hear election petitions. The complaint relating to section 32(2) of the Electoral Act involve matters that took place before the elections are held as such the Tribunal lacks the competence to handle such preliminary issues. See Doukpolagha Vs George (1992) 4 NWLR (Pt 236) 44; Enagi Vs Inuwa (1992) 3 NWLR (Pt 231) 548; Jang vs. Dariye (2003) 15 NWLR (Pt 843) 436 at 460; A.C. vs. INEC (2007) 12 NWLR (Pt. 1048) 222 at 306; Ogbeide vs Osula (2004) 12 NWLR (Pt.886) 86 at 137. In a further related case of Ibrahim Vs INEC (1999) 8 NWLR (Pt.614) 334 at 351 paras A – B. His Lordship Salami, JCA pronounced that Election Tribunal has no power to investigate matters which took place before the conduct of the election.
It is my considered view that the complaint of the appellant is not a matter to be resolved by the Tribunal The provisions of section 32(2), (4) and (5) of the Electoral Act 2006 are very clear and unambiguous. Instead of striking out paragraph 4 of the petition, the Tribunal wrongly assumed jurisdiction and resolved same on merit. I will in the circumstances having regard to the position of the law invoke the provisions of section 16 of the Court of Appeal Act and strike out paragraph 4 of the petition. Accordingly grounds 9 and 10 and issue 7 distilled from same are struck out for being incompetent.
The complaint of the appellant in this appeal basically relates to the failure of the Tribunal to properly evaluate the evidence adduced before it. I have earlier on found that exhibit ‘M’ was not properly admitted in evidence. It is apparent from the record that the Tribunal gave weight to the said document. It is however, my humble view that it is not every error committed by the court that would result to reversal of the judgment. It is only where such error has caused miscarriage of justice. In the instant case I am of the firm view that even without exhibit ‘M’ the conclusion would be the same. It was the appellant who alleged that Exhibit ‘B’ and ‘B1’ are forged, as such the burden of proving the allegation of forgery beyond reasonable remained on him. Appellant failed to discharge the burden. There is no burden placed on the 1st respondent to prove that the certificates are genuine.
It is now settled that an appellate court, looks and bases its decision, at the correctness of the decision and not necessarily, at the reason for the decision. In other words, an appellate court, will not set aside the decision of a lower court which is right and must, merely because the trial judge or the court below, gave wrong reasons for the decision. The paramount consideration for the appellate court is whether the decision is right and not necessarily whether the reasons are right. See L.T.P.P. Ltd vs U.B.N. Plc (2007) 1 WRN 117; Odukwe Vs Ogunbiyi (1998) 8 NWLR (Pt 561) 339 at 350; Jikantoro & 6 Ors Vs Dantoro & 6 Ors (2004) All FWLR 390 and A.G. Leventis Nig Plc Vs Akpu (2007) 46 WRN 1 at 27. Where a trial court wrongly made use of a documentary evidence, it is the duty of the appellate court, to re-consider, re-assess the evidence and apply it if the justice of the case so requires. See AG. Leventis Nig Plc Vs Akpu supra. As for exhibit ‘M’ I reassessed same and found that its exclusion did not affect the conclusion reached by the Tribunal. For the reasons stated above, there is no justification for this court to reverse the decision of the Tribunal.
On the whole, and for the various reasons stated hereinabove I hold that this appeal lacks merit. It is accordingly dismissed. I affirm the decision of the Tribunal dated 23rd day of October, 2007. There shall be no order as to cost.
Parties to bear their own costs.
Other Citations: (2008)LCN/2788(CA)
