Angos Dide & Anor. V. Ebiotu Seleiletimibi & Ors. (2009)
LawGlobal-Hub Lead Judgment Report
EJEMBI EKO, J.C.A.
Following election in Ekeremor II Constituency in Ekeremor Local Government Area conducted on 14th April, 2007, the 1st Respondent was returned, as duly elected into the Bayelsa State House of Assembly. The election was conducted by the 4th Respondent. The 1st Appellant was the candidate sponsored in that election by the 2nd Appellant, a political party. The PDP, the 2nd Respondent, a rival political party, sponsored the 1st Respondent.
Aggrieved by the return of the 1st Respondent the Appellants, as petitioners, filed their petition at the Governorship and Legislative Houses Election Tribunal sitting at Yenegoa, Bayelsa State. The petition presented on 14th May,2007 claims the following reliefs –
a. That it be determined that 1st petitioner is the rightful winner of the Bayelsa State House of Assembly election for Ekeremor Constituency II conducted on the 14/4/2007 having scored the majority of lawful votes cast at the election. b. That the 1st Respondent did not win and cannot be declared the winner of the said election having not scored the majority of votes cast at the election.
c. That it be determined that the 1st Respondent ought not to and was not qualified to have contested the election on ground of perjury and deliberate falsehood regarding his age and place of birth.
d. That the 4th Respondent should issue the return certificate to the 1st petitioner as he is the duly elected candidate for the said election.
e. Alternative to relief (c) above; that it be determined that the original result forwarded by the 3rd Respondent to the headquarters of the 4th Respondent wherein your 1st petitioner was returned as the duly elected candidate for Bayelsa State House of Assembly Election for Ekeremor Constituency II ought to be and is the correct version of the result of the said election. (please see pages 1 to 7 and page 12 of the Appellants’ Additional record of appeal).
The Respondents in this appeal, who also were respondents in the petition, field their replies to the petition. The 1st Respondents Reply dated 5th June, 2007 was filed the same day together with two witness statements, bereft of any documentary evidence. The 4th Respondents, on her part, filed her petition dated 26th June, 2007 on 27th June, 2007. It was accompanied by the declaration of result and certificate of return. By leave of the Tribunal granted on 20th August, 2008 the statement of Patience Bokiri (RW.1) was permitted later to accompany the Reply of 4th Respondent. The 2nd and 3rd Respondents did not file any reply. The petition was accompanied by two (2) sworn statements of witnesses namely the 1st petitioner (Appellant) and Oladimeji Blessing and some documents. The third witness and Oladimeji Blessing and some documents. The third witness indicated on the list of witnesses for the petitioners was “INEC official to tender ward Collating Result Sheet dated 14th April, 2007”.
At the trial three (3) witnesses including the 1st Petitioner/Appellant, testified. A number of documents were admitted in evidence while some were rejected. The witnesses, who testified, adopted their sworn depositions and were cross-examined. Upon the close of testimonies the counsel for respective parties submitted final addresses in writing. In its reserved judgment, delivered on 15th September, 2008, the Tribunal dismissed the petition in its entirety.
The petition was presented and contested on two main ground, namely,
- That the 1st Petitioner/Appellant was the winner of the said election as was determined from the totality of valid and lawful votes cast during the election. He had averred on this ground that the 3rd Respondent had on 14th April, 2007 declared him the winner and that subsequently, and after a few days, the National Headquarters of the 4th Respondent declared a contrary result in favour of the 1st Respondent. Hence the petition.
- That by dint of section 107(1) of the 1999 Constitution the 1st Respondent was disqualified when he presented forged/false statutory Declaration of Age affidavit in which his age and the place of birth declared therein contradicted declaration of age and place of birth done earlier in 1996 under his hand.
The 1st and 4th Respondents vehemently denied the allegation that the 1st Petitioner/Appellant was on 14th April, 2007 declared winner with the majority of lawful votes and that the declaration was subsequently cancelled in favour of the 1st Respondent. As regards the allegation that the 1st Respondent presented forged/false declaration or certificate to the 4th Respondent, only the 1st Respondent, in his reply denied the allegation. The 4th Respondent merely averred that they are “not in a position to admit or deny,, the allegation, and put the 1st Petitioner to the strictest proof of the same.
At the trial the 1st Respondent did not call evidence, in proof of his pleadings in the Reply, contrary to the two depositions on oath of himself and Niceman Dauyegha that accompanied the 1st Respondent’s Reply. Niceman Dauyegha is the deponent of the statutory Decraration of Age of the 1st Respondent, which the Appellants insist is a forged/false declaration or certificate presented to INEC, 4th Respondent, contrary to section 107(1)(i) of the 1999 Constitution.
Upon the dismissal of their petition on 15th September, 2008, the Petitioner/Appellants lodged their appeal against same on 2nd October, 2008. They canvass a total of 9 grounds of appear; including ground 6 that is a complaint against the Ruling of the Tribunal of 1st August, 2008 rejecting the document titled: CORRESPONDENCE RECEIVED/REVENUE COLLECTED FOR THE MONTH OF JANUARY, 2004. The document was apparently intended to say that Niceman Dauyegha, the deponent of the controversial affidavit – Statutory Declaration of Age, did not only fail to pay for the oath but also that he did not make the oath at the court Registry as alleged. In other words, a corroboration of the alleged forgery.
The Appellant’s Brief of Argument dated 9th February, 2009 was regularized and deemed fired and served upon Appellants’ motion dated 9th February, 2009, but fifed on 11th February, 2009. The 1st Respondent’s Brief of Argument filed within time is dated and filed on 28th April, 2009. The Appellants further fired Appellants’ Reply Brief on 6th May, 2009. No other Respondent, apart from the 1st Respondent filed brief of argument. on 20th May, 2009 when the appeal came up for hearing none of the Respondents was present inspite of the hearing notice served on them on 14th May,2009. The 1st Appellant and his counsel, Preye Agedah leading L.K. Abbe, were present. Preye Agedah Esq. of counsel for the Appellants adopted the Appellants Brief of Argument and the Appellants Reply Brief as the Appellants’ argument in the appeal and urged as to allow the appeal on al the issues canvassed.
From the nine (9) grounds of appeal the Appellants identified three issues for determination; namely:
- Whether a declaration of age and/or place of birth amounts to a “certificate” in law and if the answer is positive, whether the petitions/appellants provided sufficient evidence to prove that the 1st respondent presented a false/forged certificate to INEC and thus disqualified under section 107 of the 1999 Constitution. (Grounds 1, 2, 3, 4 and 5 of the grounds of appeal).
- Whether the rejection of the Bomadi High Court document by the trial Tribunal is justifiable in law having regard to the provisions of the Evidence Act. (Ground 6 of the grounds of appeal).
- Whether the trial Tribunal was right when it relied on Exhibit R. 1 which is not founded on any polling unit results and contains unexplained alterations on the face of it as an authentic return to which the presumption of regularity enures. (Grounds 7, 8 and 9 of the grounds of appeal).
For the 1st Respondent three issues, similar in all material particular to the 3 issues identified by the Appellants were formulated albeit more succinctly. They are:-
a. Whether the purported issue or misrepresentation founded upon a comparison of Exhibit A (i.e. INEC Form CF.001 with Age Declaration by Niceman Dauyegha) allegedly presented to INEC by the 1st Respondent and Exhibit B (i.e. Council of Legal Education Form A1 No. 0589) renders the 1st Respondent liable to disqualification for the presentation of a false/forged certificate to INEC under section 107(1)(i) of the 1999 Constitution of Nigeria?
b. Whether any valid complaint or issue can be founded upon the rejection by the Honourable trial Tribunal on the 1.8.08 of the Bomadi High Court document? And
c. Whether the Tribunal was right in relying on Exhibit R.1 and the testimony of RW.1 in affirming the return of the 1st Respondent as authentic and to which the presumption of regularity enures?
I intend to take 1st Respondent’s issue (b) couched in a form of objection first and along with the Appellants’ Issue 02. The argument of the Appellants on this issue is that Evidence is on the Exclusive Legislative list in the Constitution; any law therefore, not made by National Assembly but by any other person or authority, including Practice Directions, that excludes evidence otherwise than in accordance with the Evidence Act is void. They submit accordingly that the ruling of the Tribunal of 1.8.2008 which excluded the Bomadi High Court document, which they say is material and admissible in evidence under the Evidence Act has no basis in law. The complaint in ground 6 of the grounds of appeal is that the Tribunal erred in law to have refused to admit that document in evidence, which they say was “not only relevant to the facts of the proceedings but was on evidence in proof of allegation in Exhibit A”. The ruling that rejected that document in evidence was handed down on 1.8.2008. It was an interlocutory decision, no doubt. I agree with the 1st Respondent that the ground of appeal attacks an interlocutory decision.
The jurisdiction of an appellate court is only invoked by filing a valid ground of appeal. See OKERE v. NWAIGWE (2002) FWLR (Pt.127) 1101. A valid ground of appeal is the one that flows directly from the judgment appealed. Any ground of appeal which has no bearing with the decision appealed is invalid and liable to be struck out. See BADAU v. INEC (2008) ALL FWLR (Pt.435) 1794. The decision appealed in the instant appear is the final judgment of the Tribunal delivered on 15th September, 2008. The substance of ground 6 of the grounds of appeal does not form part of the ratio decidendi of the judgment.
The decision of the Tribunal delivered on 1.8.2008 was interlocutory. Paragraph 1 of the Practice Direction No.2 of 2007, which does not distinguish between interlocutory and final appeals enjoins every appellant to file in the Registry- of the Tribunal his notice and grounds of appeal within 21 days from the date of the decision appeal against.
By section 24 (2) (a) of the court of Appeal Act, 2004 the period for giving notice of appeal or notice of application for leave to appeal, in ordinary civil appeal, where the appeal is against an interlocutory decision is 14 days. Going either by the practice Directions or the court of Appeal Rules the Appellants were out of time by 2nd October, 2008 when they lodged their appeal, by ground 6 thereof, against the interlocutory decision of 1.8.2008.
The matter does not end there yet. The combined effect of sections 241 and 242(1) of the 1999 constitution is that appeal against interlocutory decision lies with leave of either the Tribunal or the court of Appeal. Accordingly, since ground 6 is an appeal or complaint against an interlocutory decision leave of court is imperative. For this the 1st Respondent cited TKWEKI v. EBELE (2005) Vol. 127 LRCN 1231, and I agree completely with him. Leave becomes more imperative in this appeal, for the Appellants to argue ground 6, more particularly that they were out of time to complain against the interlocutory decision of 1.8.2008 by 2.10.2008 when they lodged their appeal. In the circumstance it is trite that they should have asked for extension of time within which to appeal against that decision and leave to argue the said ground 6. See FAGUNWA v. ADIBI (2004) 17 NWLR (Pt.903) 544. The 1st Respondent is on firm ground in urging that ground 6 of the grounds of appeal is incompetent. The said ground 6 is hereby struck out. All arguments in Appellants’ Issue 02 premised on the said ground 6 are hereby discountenanced. ”
The Appellants’ third Issue is whether the trial Tribunal was right to have relied on Exhibit R.1, which is not founded on any polling unit results and which contains unexplained alterations on the face of it, as an authentic result to which the presumption of regularity enures. The 1st Respondent merely extends the scope of the issue to whether the Tribunal was right in relying on Exhibit R.1 and the evidence of RW.1 in affirming the return of the 1st Respondent. The Appellants’ evidence on this issue runs from page 14 to 17 of their brief, and pages 4 – 5 of the Appellants’ Reply Brief. It is submitted for the Appellants that the evidence of the 1st Appellant (PW.2) that he won the election and was returned as a member of Bayelsa State House of Assembly to represent Ekeremor Constituency II was corroborated by PW.1, who testified that the 1st Appellant massively won the election in the disputed wards 8 and 9. It is further contended for the Appellants that the 4th Respondent did not only fail to produce and tender the polling unit results, they also failed to produce and tender the results of the election transmitted to INEC Headquarters by PW1. For this they think the presumption in section 149 (d) Evidence Act, that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it, should apply. It is further the contention of the Appellants that their evidence as to the election results first announced by the staff, servant or agent of the 4th Respondent, which remains uncontradicted and unchallenged, should have been accepted and acted upon by the Tribunal on the authority of S.P.D.C. NIG LTD v. ESOVE (2008) 4 NWLR (Pt,1076) 72.
Appellant’s posite that Exhibit R.1, which is a declaration of result not founded on polling unit result, has no probative value and therefore should be discountenanced. They cited AMGBARE v’ SYLVA [unreported decision of this court in port Harcourt Division of 15th March, 2008). The reason for this, they say, is that polling unit results form the concrete foundation upon which election pyramid is built. INEC v. RAY (2004) 14 NWLR (Pt.892) 92 has also been cited.
On the alleged cancellation of the result first declared in favour of 1st Appellant it is submitted that the decision of the Returning officer made pursuant to section 69 [c] of Electoral Act, 2006 is final and that the 4th Respondent, INEC, can not reverse it without court intervention. The cases of ENEMUO v. DURU (2004) 9 NWLR (Pt.877) 75; BALONWU v. IKPEAZU (2005) 13 NWLR (Pt.942) 479 and NGIGE v. OBI (2006) 14 NWLR (Pt.999) 1 have been cited for this.
Attacking the evidence of RW.1 it is the contention of the Appellants on authority of OKOH v. IGWESI (2005) ALL FWLR [Pt.264] 891 that since election results are entered in forms created for that purpose, the oral evidence of RW.1 relating to election results, not tendered in court, is inadmissible in evidence.
For the 1st Respondent it is submitted inter alia that given the circumstance of this case where the Petitioners/Appellants did not discharge their primary burden of proof there was no duty on the Respondents to adduce any rebuttal evidence; that the Tribunal found that the petition anchored on allegations of falsification of result, which is criminal in nature, required proof beyond reasonable doubt under the Evidence Act, and that the Appellants failed to discharge the onus.
Now, on whom does the burden of proof lie in this petition? By section 135 Evidence Act the burden of proof lies on whoever desires the Tribunal to give him judgment as to any legal right or liability dependent on the existence of facts which he asserts to prove that those facts exist. The burden, in an election petition, lies on the petitioner who would fail if no evidence at all were given on either side. See section 136 of the Evidence Act.
The petitioners had pleaded in paragraph 8 of the petition “that the results of the election in each of the wards were as follows –
WARDS PDP LABOUR PARTY MRDD
06 7,282 304 406
07 6,154 194 1,306
08 4,746 23,760 1,481
09 5,062 12,260 187
10 7,608 407 262
TOTAL 30,852 36,925 3,642
And that these Ward Collation result sheet containing the, above results shall be-founded upon at the trial of the petition. They gave the 3rd Respondent notice to produce the said ward results at the trial. Apart from repeating his ipsit dixit in the petition the 1st Appellant did not in his sworn deposition, produce any ward result to prove this assertion. He admitted under cross-examination that
Nothing was given to me by the 3rd and 4th Respondents in respect of the first announcement made at Ekeremor Civil Centre.
Contrary to this piece of evidence, it was not pleaded in the petition that the petitioners were not given a copy each of the ward collation result sheets from the ward collation centres. What the above piece of evidence denies being given was the final constituency result and of the ward collation result sheets. As rightly submitted for the Appellants these result sheets are entered in statutory forms created for that purpose. Therefore, in view of paragraph 8 of the petition, in absence of any explanation as to why these ward collation results were not tendered as pleaded, such failure is subject to the presumption under section 149 (d) of the Evidence Act. See INEC v. RAY (supra). The Appellant did not tender any admissible secondary evidence of the ward result sheets they had pleaded even if the 4th Respondent did not heed the notice to produce they gave. It is my view that the Appellants did not prove the results pleaded in paragraph 8 of their petition.
As decided in INEC v. RAY (supra) even if the Appellants tendered the results collated at the ward level, as they had pleaded, they would still not have discharged the evidential burden of proving the authenticity of the said ward results without the polling unit results which they neither pleaded nor produced. The ward results are predicated on the polling unit results, which are the foundation on which the ward and constituency results rest. The Tribunal in my view correctly re-stated the taw on the burden of proof at page 163 of the Record where it was held –
Have the Petitioners discharged the onus placed on them by law to prove that they scored the majority of valid lawful votes cast at the election of 14th April, 2007 in Ekeremor Constituency II of Bayelsa State? It is trite law that he who alleges must prove his allegation. See section S 135 and 136 of the Evidence Act and the case of UMEOJIOKO v. EZENMUO (1990) NWLR [pt.126] Page 253 at 267.
The law of Evidence as stated by the above sections requires the Petitioners to establish their fact first, thereafter the onus shifts to the Respondents to disprove same. Thus if the Petitioners had not proved their case, then it is settled law that the burden has not shifted to the Respondents to rebut same.
RW.1, the Returning Officer, was not discredited in her evidence that Form EC8E (1), the constituency final result sheet, Exhibit R.1, on which she declared the Ekeremor Constituency II result was made by her, as the Returning Officer. She testified that she “relied on the results brought to (her) by ward collation officers under (her) constituency to collate the result (she) declared”. She was neither cross examined nor discredited on this very vital piece of evidence. There is therefore no basis for the Appellants criticizing or castigating the Tribunal for relying on the evidence of RW.1 and Exhibit R.1 in affirming the result declared in favour of the 1st Respondent.
It is submitted correctly by the Appellants on the authorities of ENEMUO v. DURU (supra); BALONWU v. IKPEAZU (supra) and NGIGE v. OBI (supra) that the decision of the Returning Officer on any question arising from or relating to declaration of scores of candidates and return of a candidate, under section 69(c) of the Electoral Act, 2006, is final subject to review by the tribunal or court in an election proceedings under the Act. The Returning officer in this particular election was the RW.1, and her declaration or return of the winner of the candidate is as contained in Exhibit R.1. In absence of any credible evidence to the contrary the said Exhibit R.1. made by the RW.1, the Returning officer, remains extant and binding on all parties concerned.
The Appellants have not proved by any credible evidence that RW.1 was not the Returning Office for Ekeremor Constituency II in Ekeremor Local Government Area of Bayelsa State. As such she shared no function of that office conferred by sections 67, 68 and 69 of the Electoral Act, 2006 with other officer of INEC or any other person, including the 3rd Respondent. Apart from the Appellants not proving that the 3rd Respondent declared the result of the election in Ekeremor constituency II and returned the 1st Appellant as duly elected, it will be ultra vires and illegal for the 3rd Respondent, not being a Returning officer, to discharge that office as averred by the Appellants in paragraph 10 of the petition. The petition merely avers that the 3rd Respondent was an agent of the 4th Respondent, INEC.
Not every agent of INEC is vested with statutory powers of a returning officer in an election.
The Appellants made so much incomprehensible noise in their petition about the 3rd Respondent, described as Bayelsa State Resident Commissioner, declaring the 1st Petitioner/Appellant the winner of the election. No effort was made to show that the 3rd Respondent was the returning officer for the election in dispute. Since he was not the returning officer the 3rd Respondent would have no powers in law to validly declare the 1st Petitioner/Appellant the winner of the disputed election. Such usurpation of the powers of the RW.1, the accredited returning officer, would have been ultra vires which will render the exercise of that purported power absolutely null and void.
Appellants also made so much fuss about Exhibit R.1 having unexplained alterations which made it unreliable. This attack on Exhibit R.I was made completely oblivious of the evidence in-chief of the RW.1 contained in her sworn deposition. Paragraphs 16, 17 and 18 thereof as they are germane are herein below reproduced –
- I entered the results in the form ECE(1) in the order the wards that were listed.
- After the final collation which was at about 9.00 pm, I added up the figures in the forms and PDP has 59,866, LP had 5,914 while MRDD had : 3,642.
- I then transferred the results into form EC8E (1) which the Local Government Collation Officer mistakenly signed but was corrected when INEC official told him there and then that the result is to be signed and declared by myself as the constituency Returning Officer whereupon I signed and declared the winner.
The cancellation of the name EFFIONG EANEM OKU-USEN on the face of Exhibit R.1 was duly signed and dated. The Returning Officer, BOKIRI PATIENCE (RW.1) was neither cross-examined, nor discredited, on this explanation. Evidence which is uncontradicted and unchallenged, in law, deserves to be accepted and acted upon as credible evidence by any judicial authority. See S.P.D.C. NIG LTD v. ESOVE (supra). The Tribunal was entitled to act on RW.1,s evidence on Exhibit R.1, and the exhibit itself to affirm the declaration of the 1st Respondent as the winner of the election. Accordingly, I resolve this issue No. 3 against the Appellants.
The only remaining issue now is the first issue formulated by the Appellants. That is – whether a declaration of age and/or place of birth amounts to certificate in raw, and if the answer is positive, whether the Petitioners/Appellants provided sufficient evidence to prove that the 1st Respondent presented a false/forged certificate to INEC and thus disqualified under section 107 of the 1999 constitution? The 1st Respondent puts the issue differently. on his part the issue is – whether the purported issue of misrepresentation founded upon a comparison of EXHIBIT A (i.e. INEC form Cf.001 with Age Declaration by Niceman Dauyegha) allegedly presented to INEC by the 1st Respondent and Exhibit B (i.e. Council of Legal Education form 41 No. 0589) renders the 1st Respondent liable to disqualification for the presentation of a false/forged certificate to INEC under section 107(1)(i) of the 1999 constitution of Nigeria?
The 1999 constitution provides, in section 107(1)(i) thereof as follows –
107(1) No person shall be qualified for election to a House of Assembly if
(i) he has presented a forged certificate to the Independent National Electoral Commission.
The Tribunal dismissed the contention of the Appellants, as petitioners there, that the 1st Respondent, by presenting Exhibit A to INEC, had presented to INEC a forged certificate and therefore was disqualified thereby from contesting election to Bayelsa State House of Assembly. The Tribunal at page 161 of the Record held that –
Forgery as envisaged by the provisions of section 107(1) (i) [of the 1999 Constitution] does not extend to forgery of age declaration or other documents but forgery of school certificate and its equivalent.
It is the submission of Preye Agedah, Esq. of counsel to the Appellants that the Tribunal had obviously considered the provisions of section 107(1)(i) of the Constitution in isolated prison of an educational certificate which led the Tribunal to a wrong judgment. Counsel submits further, that certificate as defined by Black’s Dictionary is any “document in which a fact is formally attested”. Counsel further submits that the effect of Exhibits A and B is that the 1st Respondent was disqualified from contesting the election, that on this fact by dint of section 145(1)(a) of the Electoral Act, 2006 the election of the 1st Respondent court be questioned, as they have done; and that they are required only to prove that
i. the certificate presented to INEC by the candidate (1o Respondent) was forged, and
ii. it was the candidate (1st Respondent) that presented the certificate, in this case, the certificate of birth (statutory declaration of Age) attached to Exhibit A
to satisfy the law as stated in IMAM v. SHERIFF (2005) 4 NWLR [Pt.914] 80. Counsel then urged us to nullify the election of 1st Respondent upon holding that Exhibit A presented by the 1st Respondent to INEC is a forged certificate which, in the light of Exhibit B, was neither challenged nor contradicted. The cases of NGIGE v. OBI (2006) 14 NWLR (Pt.999) 1 and YUSUF V. OBASANJO (2005) 18 NWLR (Pt.956) 96 were cited as authority for the powers this court can exercise in the circumstance. In the Appellants Reply Brief counsel further argues that the definition of school certificate in section 318(1) of the Constitution can not be imported for the meaning of certificate in section 107(1) (i) of the Constitution and that the constitutional provisions should not be given a narrow interpretation, but a wide and broad interpretation as stated in NAFIU RABIU v. KANO STATE (1980) 8 – 11 sc 130 at 149; PDP v. INEC (1999) 71 LRCN 2464. He further submits that an interpretation that will likely oust or limit the jurisdiction of the Tribunal to hear and determine election petitions should be avoided.
E.G. Omukoro, Esq. of counsel for 1st Respondent submits that while Exhibit A which includes the Affidavit of Age Declaration concerning the 1st Respondent was allegedly presented to INEC, there is no evidence that Exhibit B, a statement on oath made by 1st Respondent to the Council of Legal Education was presented to INEC as contemplated by section 107(1)(i) of the Constitution; that at worst if any legislative provision was contravened, it was section 32 (2) – (4) of Electoral Act. Counsel further submits that in some extra ordinary circumstance affidavit could amount to certificate but the meaning should not be stretched beyond its ordinary plain meaning; and that the meaning should not be stretched beyond educational certificate defined by section 318(1) of the Constitution and not mere attestation. He urged that Exhibit A should not be treated as infraction of section 107(1)(i) of the constitution, but as an infraction of section 32 of Electoral Act which is a pre-action matter beyond the jurisdiction of election tribunal as was held in BAYO v. NJIDDA (2004) 8 NWLR [Pt.876] 544 at 595 D – E and AREBI v. GABAIJO (2008) 49 WRN 29 at 69. Having given due consideration to the arguments of the parties I think I should start with section 32 of the Electoral Act, 2006. It provides in part:
- (1) Every political party shall not less not later 120 days before the date appointed for a general 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 the election.
(3) The Commission shall, within 7 days of the receipt of the personal particulars of the candidate, publish same in the constituency where the candidate intends to contest the election.
(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.
(5) If the court determines that any of the information contained in the Affidavit is false the court shall issue an order disqualifying the candidate from contesting the election.
(6) ………
(7) ………
The major innovation legislated into these provisions is the reinforcement of the duty of every citizen to abide by the Constitution, its institutions and ideals and to further enhance the power, prestige and good name of the Nation in terms of section 24 of the Constitution. Section 32 of the Electoral Act, particularly sub-section (4) thereof, has widened the scope of the law on locus standi by its empowerment of the general public to participate in the process towards emergence of credible candidates or leaders. By this broad locus standi every citizen has now been empowered to screen candidates sponsored by political parties and presented to INEC for elections. This general or broad locus standi is limited to pre-election disputes as to the falsity or otherwise of the “Affidavit sworn to by each candidate indicating that he has fulfilled all constitutional requirements for election into that office” he seeks.
The locus standi or cause of action vested by section 32 of the Electoral Act is quite distinct from the locus standi to bring election petition at the election tribunal under sections 144(1) and 145(1)(a) of the Electoral Act. Only a candidate in an election and/or a political party which participated in the election have locus standi under section 144 of the Act to present an election petition. See INEC v. ACTION CONGRESS [2009] 2 NWLR [pt.1126] 525 at 587. The grounds on which the candidate or political party may question an election are set out in section 145(1) of the Act. They include the ground “that a person whose election is questioned was, At the time of the election, not qualified to contest the election”. Section 107(1)(i) of the constitution enacts one of such disqualifications. While the locus standi under section 32 of the Act is expansively vested in every citizen, it is however limited and restricted to a very narrow cause of action in subsection (4) thereof. That is, “reasonable grounds to believe that any information given by a candidate in the Affidavit is false”. The right to the cause of action in section 32 is only exercisable in pre-election dispute. Section 32 of the Act does not exclude the exercise of the right to present election petition by those vested with the locus standi to present election under section 144(1) of Act. In particular section 32 of the Electoral Act aims at pursuing the ideals of section 107(1)(i) of the Constitution. That is by vesting on the public a civic duty to fish out those politicians who misrepresent themselves to INEC and thereby find their ways into governance.
By section 107(1)(i) of the Constitution no person shall be qualified to contest election to a House of Assembly if he has presented forged certificate to INEC. The infraction of those provisions, in my view , could sustain an election petition under section 145(1) (a) of the Electoral Act that says that that an election may be questioned on the ground that the person whose election is questioned was at the time of the election, not qualified to contest the election petition. A candidate who before the date fixed for the election presents forged certificate as part of his particulars in the mandatory Affidavit required by section 32 of Electoral Act comes under the operation or ambit of section 107(1) (i) of the Constitution. The constitutional requirements for the election contemplated by section 32(2) of the Electoral Act, include the requirement of section 107 (1) (i) of the Constitution that a candidate shall not present a forged certificate to INEC to enable him contest the election.
It is very clear to me that sections 32 and 144 of the Electoral Act, 2006 are not mutually exclusive in the rights they vest. To hold otherwise will offend the principle laid down in FIRST BANK OF NIGERIA PLC v. ABRAHAM (2008) 36.2 NSCQR 1058 at 1088 that courts should be careful not to lay down any principle which ultimately impedes the course of justice. Since laws are made of words and the words used in the statute best declare the intention of the lawmaker, the court must give effect to the words of the statute. See OJOKOLOBO v. ALAMU (1987) 3 NWLR (pt.61) 377 at 402 F – H; IBRAHIM v. BARDE (1996) 9 NWLR (pt.474) 513. There is no conflict between sections 32 and 144 of the Electoral Act. Their words are simple and unambiguous. They are entitled to their ordinary meaning.
It is a cardinal principle of interpretation that it is no business of the court to re-write the law or to venture outside the words of the statute by introducing extraneous matters that will lead to circumventing or giving the provision an entirely different interpretation from what the lawmaker intended it to be. See UNIPETROL v. ESBIR (2006) ALL FWLR (Pt.317) 413; OBUSEZ v. OBUSEZ (2007) 30 NSCQR 329. It is therefore no function of the court in interpreting a statute to construe it to mean what it does not mean, or to not to mean what it clearly means. As I have been saying sections 32 and 144 of the Electoral Act, 2006 vests rights on the public and a class of people respectively. No where in the Act is it stated that the operation of one excludes the other. The courts have adopted a principle that statutes that vest rights should be interpreted to respect such rights, and that if there is any ambiguity the construction which is in favour of the individual should be adopted. See AFOLABI v. GOV. & OYO STATE (1985) 2 NWLR (Pt.9) 734; DAVID v. DE SILVA (1934) AC 106; KALANGO v. GOVERNOR & BAYELSA STATE (2009) 7 NWLR (Pt.1139) 17 at 31.
The next issue to consider is the meaning of the word: a “certificate” used in section 107(1)(i) of the Constitution. The contention of the 1st Respondent is that the word “certificate” in section 107(1)(i) thereof is synonymous with school certificate used in section 106[c] and defined in section 318(1) of the same. Generally, section 107(1) is “character issue” based and its target is the “bad guy” which it intends to keep out of the House of Assembly. Among such putrid characters is the person who, in order to contest election to the House of Assembly, presents forged certificate to INEC to enable him be on the ballot.
The constitution, as the Supreme Court enjoins us to do, should be given broad and liberal construction to promote its purpose which includes good government and the people’s welfare. Accordingly, narrow and conservative construction of its provisions should be avoided. See NAFIU RABIU v. THE STATE (1980) 8 – 11 SC 130; ONYEMA v. OPUTA (1987) 6 SC 362 at 371. The provisions of section 107(1)(i) of the Constitution are plain and unambiguous. They are entitled to be given their natural meaning. Words only mean what they say. In the words of section 107(1)(i) any person who has presented a forged certificate to INEC is not qualified for election to the House of Assembly. Such person should not be eligible to make laws that govern or rule other citizens. It is very obvious from sections 106[c] and 318(1) of the Constitution that school certificate is just one aspect of the certificate contemplated by section 107(1)(i). The provisions of section 107(1)(i) are wider in scope than the narrow con in which school certificate has been used in section 106 and defined by section 318(1).
The noun certificate is derived from the verb certify. To certify, in its ordinary natural sense, means to attest, verify, testify, vouch, ascertain, determine, or to show. See English Thesaurus – Geddes & Grosset 2001 ed., Chambers Mini Dictionary.
Certificate’ as a noun therefore, means any document that attests, testifies, vouches, ascertains, and verifies the facts therein. According to BLACK’S LAW DICTIONARY a certificate is a document in which a fact is formally attested. In my view, a certificate in the con of section 107(1)(i) of the Constitution has wider connotation than the school certificate in section 106[c] which is defined in section 318(1) of the same Constitution. Having said all these, I am of the firm view that the Affidavit of Declaration of Age deposed on oath by Niceman Dauyegha is a certificate which attests the fact that the 1st Respondent was born on 16th July, 1966 at Kusi-Tamogbene in Ekeremor Local Government Area of Bayelsa State. The 1st Respondent needed it and presented it to INEC to satisfy section 32(2) of Electoral Act and for the purpose of indicating that he has fulfilled All the constitutional requirements for election to Bayelsa State House of Assembly. To further believe this the 1st Respondent, at the end of Exhibit A, INEC FORM Cf.001, made the following declaration on oath at paragraph F thereof that –
I hereby declare that all the answers facts and particulars I have given in this Form are true and correct and I have to the best of my knowledge fulfilled all the requirements for qualification into the office I am seeking to be elected.
In part paragraphs 11 and 12 the 1st Respondent stated that he was 40 years and that he was born at Kusi-Tamugbene on 15th July, 1966. In the statutory Declaration of Age made allegedly on 16th January, 2004 Mr. Niceman Dauyegha declares on oath inter alia
- That the said EBIOTU SELEKEIMIBI (M) was born on the 16th day of July, 1966 at Kusi-Tamigbene in Ekeremor
Local Government Area of Bayelsa State of Nigeria.
Exhibit B was produced to establish that 1st Respondent and Niceman Dauyegha made false declarations on oath in Exhibit A that 1st Respondent was
i. born on 15th or 16th July, 1966
ii. At Kusi-Tamigben in Ekeremor Local Government Area of Bayelsa State.
In Exhibit B the 1st Respondent stated under his own hand and under oath that he was born on 16th July, 1970 at Ojobo Town, Burutu LGA in the present Delta State. 1st Respondent called no evidence to the contrary of Exhibit B, the document or oath he made previously. He therefore admitted that fact.
In Nigeria, forgery consists of the making of a false document or writing knowing it to be false and with intent that it may be used as a genuine document. See SMART v. STATE (1974) 11 SC 173 at 186. I have no doubt whatsoever that Exhibit B proves beyond reasonable doubt that Exhibit A presented to INEC by the 1st Respondent, himself a lawyer, is a forged certificate, at least as respects his age declaration and the place of birth. The 1st Respondent offered no evidence to rebut or clarify the issues raised by Appellants at the Tribunal as regards Exhibits A and B. The issue is not that the 1st Respondent had/had not the minimum educational qualification but whether Exhibit A or the age certificate was false or a forged document. I resolve this issue in favour of the Appellants and against the 1st Respondent. The Tribunal erred when it held that forgery as envisaged by section 107(1)(i) of the Constitution does not extend to forgery of age declaration or other documents, but forgery of school certificate and its equivalent. The appeal is allowed in part.
The effect of my holding that Exhibit A has been established as a forged certificate and that it was presented to INEC, 4th Respondent, by the 1st Respondent, is that 1st Respondent has run foul of or infracted section 107(1)(i) of the Constitution. Accordingly, I hereby nullify the election of the 1st Respondent and set aside the certificate of Return issued to him by the 4th Respondent on 20th April, 2007. That shall be the order of the Tribunal as I hereby set aside the judgment.
Accordingly, the 4th Respondent is hereby ordered to organize a fresh election in the constituency within 90 days between the 1st Appellant, a candidate sponsored by 2nd Appellant, and the candidate sponsored by MRDD. Costs at N50,000.00 shall be paid to the Appellants by the 1st Respondent.
Other Citations: (2009)LCN/3516(CA)
