Apc & Anor V. Obaseki & Ors (2021)

LAWGLOBAL HUB Lead Judgment Report

EMMANUEL AKOMAYE AGIM, J.S.C. 

This appeal No. SC/CV/376/2021 was commenced on 30-3-2021 when the appellant herein filed a notice of appeal against the judgment of the Court of Appeal in Appeal No. CA/A/71/2021 delivered on 18-3-2021 dismissing the applicant’s appeal to it against the judgment of the Federal High Court delivered on 9-1-2021 in suit No. FHC/B/CS/74/2020 and affirming the said judgment.

The notice of appeal contains 24 grounds for the appeal.

The 1st respondent to this appeal, on 31-3-2021 filed a notice of cross appeal against the said judgment of the Court of Appeal. The notice of Cross Appeal contains two grounds for the Cross Appeal.

In respect of the appeal, the following briefs were filed – appellant’s brief, 1st respondent’s brief, 2nd respondent’s brief and appellant’s replies to the 1st and 2nd respondent’s brief.

Learned counsel for the 3rd Cross-Respondent stated that the 3rd respondent filed no brief.

​In respect of the cross appeal, the following briefs were filed – Cross-Appellant’s brief, 1st and 2nd Cross-Respondent’s brief and Cross-appellant’s reply brief.

The appellant’s brief raised the following issues for determination-

1. Whether on a proper consideration of the appellants’ pleadings, and the evidence led in support, the lower Court did not misconstrue the case of the appellants and thereby arrive at conclusions which are contrary to the case of the appellants against the respondents. Covers ground 1, 9 and 17.
2. Whether on a proper consideration of the appellants case as presented in the pleadings, supported by credible evidence and guided by applicable decisions of the Supreme Court, the lower Court was not wrong when it held that appellants did not prove their case. Covers grounds 2 3 4 5 6, 8, 10, 13, 16, 21, 23 and 24.
3. Whether having regard to settled rules of interpretation, the lower Court did not err by reading into Sections 31(5) and (6) of the Electoral Act, 2010 as amended what was not enacted therein, thus putting on the appellants a burden of proof not justified by the language of Section 31(5) and (6) of the Electoral Act, 2010 as amended. Covers ground 7.
4. Whether having regard to the wordings of Sections 31(5) of the Electoral Act, 2010 ​and Section 182(1)(j) of the 1999 Constitution as amended, the lower Court was right when it held that to prove the allegations against the 1st respondent, the appellants have to prove all elements of forgery and falsification of documents alleged. Covers grounds 6, 11 and 15.
5. Whether the lower Court was right when it held that the evidence of DW1 was not hearsay. Covers grounds 12, 14 and 18.
6. Whether the complaint of the appellants to the effect that the trial Court failed to consider the objection raised by the appellants against some of the documents tendered by the 1st respondent was properly addressed and resolved by the lower Court in the light of the circumstances of this case and the applicable law. Covers grounds 19 and 20.
7. Whether it was right and in keeping with the tenets of justice for the appellate lower Court to speculate and adduce its own reasons or grounds for the finding made by the trial Court which the Court failed to justify by reference to the pleadings and/or the evidence before the Court. Covers ground 22.

​The 1st respondent’s brief raised for determination the following issues:

Whether the Court below misconceived the appellants’ case as set out in their Statement of Claim, misconceived the burden of proof applicable to Section 31(5) and (6) of the Electoral Act 2010 (as amended) and Section 182(1)(j) of the 1999 Constitution and thereby came to a wrong conclusion that the appellants did not prove their case. (Combination of appellants issues (1) — (iv) and (vii)) Grounds 1, 2, 3, 4, 5, 6, 9, 10, 11, 13, 15, 16, 17, 21, 22, 23 and 24).

2. Whether the Court below was right when it held that the evidence of DW1 was not hearsay. Grounds 12, 14 and 18.
3. Whether the Court below was right when it held that in the circumstances of this case the failure of the trial Court to rule on the appellants’ objection to the admissibility of some documents did not occasion any miscarriage of justice to the appellants. Grounds 19 and 20.

The 2nd respondent’s brief adopted and argued the issues raised for determination in the appellant’s brief.

​The Cross-Appellant’s brief raised a sole issue for determination as follows:

Whether by the provisions of Section 285(10) of the Constitution of the Federal Republic of Nigeria 1999 (Fourth Alteration, No. 21) Act, 2017 ​ the justices of the Court of Appeal were in error when they dismissed the cross-appellant’s motion on notice which challenged the competence of grounds of appeal in which the complaint of the 1st and 2nd Cross Respondents was that the trial High Court failed to consider and determine their case. (Grounds 1 and 2 of the Notice of Appeal).

The 1st and 2nd Cross-Respondent’s brief raised one issue for determination as follows:

Whether having regard to the provisions of Section 285(10), (11) & 12 of the Constitution of the Federal Republic of Nigeria, 1999 as amended the lower Court was not right in refusing the cross-appellants motion challenging grounds 1, 2, 3, 4, 10 and 11 of the 1st and 2nd cross-respondents’ notice of appeal? Covers grounds 1 and 2 of the Notice of Cross Appeal.

I will determine the main appeal first before I consider the Cross appeal.

I will determine this appeal on the basis of the issues raised for determination in the appellant’s brief.

​I will determine all the issues in the appellant’s brief together as they all deal with the approach of the Courts to ​the evidence.

I have carefully read and considered the arguments in all the briefs on these issues.

Let me consider the argument of Learned SAN for the appellants that the trial Court and the Court of Appeal misconstrued the case presented by the appellants, set up and decided a case different from that presented by the appellants in their pleadings and evidence.

​

The argument of Learned SAN for the appellant that the appellants did not make any case that the 1st respondent forged any of his educational documents and that the finding of the trial Court that the 1st respondent did not forge any of his educational documents was completely extraneous to the case made by the appellant is contrary to the appellant’s pleading and evidence and is therefore not valid. The pleading and evidence show clearly that the case the appellant presented is that the information in 1st respondent’s INEC Form EC9 that he graduated from university of Ibadan in 1979 and that he worked with Afrinvest between 1994 and 2016 is false and that the 1st respondent’s educational certificates submitted along with his Form EC9 to the 3rd respondent are false and forged.

In paragraph 14 of the statement of claim they pleaded that “the 1st defendant presented false/forged University of Ibadan Degree Certificate to the 3rd defendant on 29th June, 2020. Under a heading “Particulars of Falsehood/Forgery”, they pleaded the particulars of the falsehood/forgery in subparagraphs (1) to (xii). Paragraph 26 of the statement of claim also aver that the “1st defendant also presented a false/forged Advance Level WAEC Certificate/Testimonial to the 3rd defendant. The particulars of Falsehood/forgery, are pleaded in subparagraphs i to vi therein. Paragraph 28 (ii) of the statement of claim state that “the 1st defendant presented forged/false certificates in the form of the University Degree, Advanced Level WAEC and Testimonial from the institute of Continuing Education to the 3rd defendant in a bid to help his qualification to contest office.

In paragraph 29 of the statement of claim the appellants claimed for the following reliefs-

“1. A DECLARATION that the 1st Defendant’s INEC FORM EC9 at column “C” thereof sworn to on 29th June, 2020 at the Federal Capital Territory High Court Registry, Abuja, to the effect that the 1st Defendant obtained from the University of Ibadan in 1979, a Bachelor of Arts Degree in Classical studies is false and contrary to Section 31(5) and (6) of the Electoral Act, 2010, (as amended).

IN THE ALTERNATIVE

A DECLARATION that the 1st Defendant’s INEC Form CF 001 at column “C” thereof sworn to on 11th July, 2016 at the High Court Registry, Benin City, to the effect that the 1st Defendant obtained from the University of Ibadan in 1976, a Bachelor of Arts Degree in Classical studies is false and contrary to Section 31(5) and (6) of the Electoral Act, 2010, (as amended).

2. A DECLARATION that the 1st Defendant’s statement contained in INEC Form EC9 at column “D” thereof sworn to on 29th June, 2020 at the Federal Capital Territory High Court Registry, Abuja to the effect that the 1st Defendant worked in Afrinvest Ltd from 1994 to 2014 when he retired is false and contrary to Section 31(5) and (6) of the Electoral Act, 2010 (as amended).
3. A DECLARATION that the 1st Defendant’s presentation of a Bachelor of Arts Degree in Classical studies from the University of Ibadan with a sole signatory of the Vice-Chancellor, no effective date of award as against the standard operating procedure of the Examination, Records and Administrative Data Processing Division of the University of Ibadan amounts to the presentation of a forged/false certificate to the Independent National Electoral Commission contrary to the provisions of Section 182(1)(j) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
4. A DECLARATION that the 1st Defendant’s presentation of Advanced Level WAEC Certificate dated June, 1976 which showed that the 1st Defendant sat for examination in subjects materially different from those shown in the Testimonial of the institute of Continuing Education of 25th September, 1975, where 1st Defendant was a student and from where he purportedly wrote the said examination, amounts to the presentation of a forged/false certificate to the Independent National Electoral Commission Contrary to the provisions of Section 182(1)(j) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

IN THE ALTERNATIVE

A DECLARATION that the 1st Defendant’s presentation of the Testimonial of the Institute of Continuing Education of 25th September, 1975 where 1st Defendant was a student and from where he purportedly wrote the said examination and which shows that the 1st Defendant sat for examination in subjects materially different from those shown in the Advanced Level WAEC Certificate dated June, 1976, amounts to the presentation of a forged/false certificate to the Provisions of Section 182(1)(j) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

5. A DECLARATION that the 1st Defendant misled the 3rd Defendant by his false statement on Oath and presentation of false certificate to the effect that 1st Defendant had a University Degree from the University of Ibadan and Advanced Level WAEC Certificate/Testimonial from Institute of Continuing Education before listing the 1st Defendant as a candidate for the Edo State Governorship Election scheduled for 19th September, 2020 or on any other date that may be appointed for the purpose.
6. A DECLARATION that 1st Defendant is disqualified from contesting election to the office of Governor of Edo State for non-fulfillment of the Constitution Requirement in Section 182(1)(j) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) ​and upon presenting false/forged Certificate to Independent National Electoral Commission and contrary to Section 31(5) and (6) of the Electoral Act, 2010 (as amended).
7. A DECLARATION that the 2nd Defendant having sponsored a candidate who supplied false information on oath and presented false/ forged certificates to 3rd Defendant contrary to Section 31(5) and (6) of the Electoral Act, 2010 (as amended) and Section 182(1)(j) of the Constitution of the Federal Republic of Nigeria, 1999 (as altered) is not entitled to participate in the Election scheduled for 19th September, 2020 or on any other date that may be appointed for the purpose.
8. A DECLARATION that upon the conduct of the Governorship Election of Edo State slated for 19th September, 2020, or on any other date that may be appointed for the purpose, any vote or votes scored by the 1st and 2nd Defendants be declared invalid, null, void and of no effect whatsoever as votes scored by an unqualified candidate of the 2nd Defendant.
9. AN ORDER disqualifying the 1st Defendant from contesting the Edo State Governorship Election scheduled for 19ths September, 2020 or on any other date that may be appointed for the purpose on the ground that 1st Defendant supplied false information on oath to 3rd Defendant contrary to Section 31(5) and (6) of the Electoral Act, 2010 (as amended).
10. AN ORDER disqualifying the 1st Defendant from contesting the election to the office of Governor of Edo State scheduled for 19th September, 2020 or on any other date that may be appointed for the purpose on the ground of non-fulfillment of the Constitutional requirement in Section 182(1)(j) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)
11. AN ORDER OF MANDATORY INJUNCTION directing the 3rd Defendant to remove from its list of nominated or sponsored candidates eligible to contest election in the election scheduled for 19th September, 2020 for the office of Governor of Edo State or any list, ballot paper or election records or materials bearing the name of the 1st Defendant as the sponsored candidate submitted by the 2nd Defendant to the 3rd Defendant to contest election to the office of Governor of Edo State scheduled for 19th September, 2020 or on any other date that may be appointed for the purpose.

AN ORDER OF INJUNCTION restraining the 2nd Defendant by itself or through its servants, privies, members, agents or associates from parading or representing itself as having sponsored or nominated the 1st Defendant or canvas for vote in whatsoever manner for 1st Defendant in respect of the election to the office of Governor of Edo State scheduled for 19th September, 2020 or on any other date that may be appointed for the purpose.

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

The appellants elicited evidence through six witnesses whose testimonies in examination in chief in substance restated the facts pleaded in the statement of claim and tendered several documentary evidence to prove that the 1st respondent’s documents that accompanied his Form EC9 submitted to the 3rd respondent were forged or false. Therefore, the argument of Learned SAN that “the appellants made no allegation in their pleadings of forgery and/or falsification of documents against the 1st respondent” is wrong.

The Court of Appeal correctly affirmed the decision of the trial Court that the case presented by the appellants is that the copies of the 1st respondent’s educational certificates submitted to the 3rd respondent with his candidate Form EC9 were forged or false. The Court of Appeal was correct when it held that-

“The lower Court really appreciated the case postulated on the statement of claim and reliefs sought. It is in the address of the Appellants they engaged in ground shifting from facts pleaded concerning forged/false certificates presented to 3rd Respondent by 1st Respondent to proof under Section 31(5) and (6) of Electoral Act which they claimed “does not permit any explanation from the candidate as to why he submitted a false document to INEC”

The appellants in this Court also completely moved away from their pleaded case at the lower Court which was rooted in criminality. They had pleaded that the 1st Respondent forged his educational certificates/results of examinations and deliberately presented them in aid of his qualification to contest the Gubernatorial Election in September, 2020 contrary to Section 31 (5) (6) of Electoral Act and Section 182 (1) (j) of the Constitution of the Federal Republic of Nigeria, 1999 as amended.

The appellant’s change of position in this Court can be found in paragraphs (v) and (vi) page 25 of their Brief where they categorically stated that “the case of the appellants was not concerned with the authenticity of the 1st Defendant’s degree certificate or whether the degree certificate in the possession of the 1st respondent was validly issued to him.” And that “there was therefore no need for the appellants to embark on any journey to University of Ibadan to verify authenticity of any degree certificate that may have been issued to the 1st respondent”.

Learned SAN for the appellants also argued that the Court of Appeal and the trial Court misunderstood the appellants’ case as challenging the qualification of the 1st respondent to be candidate in the election and that the Court of Appeal was wrong to hold that the appellant’s case is that the 1st respondent did not have the prerequisite constitutional and statutory qualification to contest the election. This argument is wrong having regard to the appellant’s pleadings. It is clear from the appellant’s pleading that this is part of the case they made. This is clear from paragraphs 19, 25, and 28 of the statement of claim. I reproduce them here for ease of reference as follows-

“19. The plaintiffs became aware of certain discrepancies after 1st Defendant was sponsored as candidate by 1st plaintiff to contest the Governorship Election for Edo State in September, 2016. Following the said sponsorship, 2nd Defendant and one Professor Edoba Omoregie filed Suit No: FHC/B/CS/125/2016 against the 1st and 3rd Defendants at the Federal High Court, Benin City in 2016. The suit challenged the candidacy of the 1st Defendant and sought his disqualification for giving false information on INEC Form CF 001 and non-fulfillment of the Constitutional requirement prescribed in Section 182(1) (h) of the Constitution of the Federal Republic of Nigeria 1999 (as altered).

25. The plaintiffs aver that apart from taking photographs of the displayed INEC Form EC9 and supporting documents, Plaintiffs thoroughly scrutinized them and found out that the INEC Form EC9 contained some false statements which directly relates to disqualification contained in the Constitution of the Federal Republic of Nigeria, 1999 (as altered) and the Electoral Act, 2010 (as amended).
26. The 1st Defendant lied on Oath in his INEC For EC9 of 29th June, 2020, when he claimed to have fulfilled all Constitutional requirements for the election to the office of Governor of Edo State scheduled for 19th September, 2020

PARTICULARS

i) A person who presents a forged certificate to the Independent National Electoral Commission is disqualified by the provisions of Section 182(1)(j) of the Constitution of the Federal Republic of Nigeria, 1999 (as altered) from contesting for Election to the office of Governor of Edo State.

ii) 1st Defendant presented forged/false certificates in the form of University Degree, Advanced Level WAEC and Testimonial from the Institute of Continuing Education to the 3rd Defendant in a bid to help his qualification to contest for office.

iii) The presentation of these false document led 3rd Defendant and the public to believe that 1st Defendant indeed qualified to contest for the office of Governor of Edo State”.

In the light of the foregoing I hold that Court of Appeal and the trial Court correctly understood and construed the case presented by the appellants in their pleadings and evidence.

​

It is obvious that the appellants’ complains in issues nos. 2 to 7 in their brief result from their view that the trial Court and the Court of Appeal misconstrued the case presented by the appellants, set up and decided a case different from that presented by the appellants in their pleadings and evidence. This position is confirmed by the submission of Learned SAN for the appellant that “If the lower Court had not misconstrued the appellants’ case it would have found that on the evidence led by the appellants in support of their case and supported by the evidence extracted from the 1st respondent’s witnesses under cross-examination, the appellants established their case and ought to have been given judgment as will be shown anon.” Now that we have held that their said view is wrong, it follows that their complains in issues nos. 2 to 7 based on this erroneous view are now baseless and that the decision of the Court of Appeal affirming the decision of the trial Court that the appellants did not prove their case is correct. Therefore, there is no need considering those issues.

Be it as it is, let me, for whatever it is worth, still consider the issue of whether the Court of Appeal was right in affirming the decision of the trial Court that the appellants did not prove their case.

​

It was the appellants herein as plaintiffs that desired that the trial Court grant the reliefs they claimed for on the basis that the facts they assert in their pleadings exist and it is their case that will fail if they fail to adduce evidence to prove the existence of those facts. They can only secure the favourable Judgment they desire on the strength of their case as established by legal evidence and not on the weakness or absence of a defence. Therefore, the legal burden to prove the said facts upon which the success of their case depends rests squarely on them by virtue of S.s 131, 132 and 133 (1) and (2) of the Evidence Act 2011 which provide thusly –

131 (1) – Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.

132. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

133 (1) – In civil case, the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.

(2) If the party referred to in Subsection (1) of this Section adduces evidence which ought reasonably to satisfy the Court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced, and so on successively, until all the issues in the pleadings have been dealt with.

By virtue of the provisions of S. 133(2) of the Evidence Act 2011, the plaintiffs evidence must establish their case, before the evidential burden to rebut the case established by their evidence can shift to the defendants and if the plaintiffs’ evidence fail to prove their case, then the case collapses and must be dismissed.

​

The case presented by the appellants in their pleadings is that the information the 1st respondent gave in his INEC Form EC9 of 29-6-2020 that he obtained a degree certificate from the University of Ibadan is false as he did not obtain the said degree from the University of Ibadan in 1979, that the photocopy of the undated degree certificate signed by only the Vice Chancellor is forged, that the 1st respondent gave false information in INEC Form EC9 that he worked in Afrinvest Ltd from 1994 to 2014 and retired, that the A/Level WAEC Certificate dated June, 1976 and Testimonial from Institute of Continuing Education in Benin City stating that 1st respondent sat for Advance Level examination in May/June 1975 submitted with 1st respondent’s INEC Form EC9 are forged.

The main evidence relied on by the appellants to prove these assertions is the 1st respondent’s INEC Form CFOOI filled on 11-7-2016 (exhibit PL 11) and the educational credentials attached to it. 1st respondent had stated in the said Form CFOOI that he obtained his degree from University of Ibadan in 1976, that he worked with Afrinvest between 1994 and 2014. In Form EC9 he stated that he obtained his degree from University of Ibadan in 1976, that he worked with Afrinvest between 1994 and 2016. The Form CFOO1 of 2016 was accompanied by an undated degree certificate from University of Ibadan signed by only the Vice Chancellor. Form EC9 was accompanied by the dated degree certificate signed by the Vice Chancellor and Registrar. The appellants relied on the difference between the 1st respondent’s information in CFOO1 and his information in Form EC9 to assert that the information in Form EC9 is false. They also relied on the the photocopy of the University of Ibadan Degree Certificate that accompanied the 11-7-2016 Form CFOO1 to assert that the photocopy of the same degree certificate attached to the Form EC9 of 29-6-2020 is forged. The testimonies of PW1 to PW6 consist of opinions and observations on the content of copies of 1st respondent’s educational certificates that were submitted with his form EC9 to the 3rd respondent in 2020.

​What is clear from the evidence elicited by the appellants is that they relied on the information in 1st respondent’s INEC FORM CF001 of 2016 (exhibit PL 11) to prove the falsity of the information in his INEC Form EC9 (exhibit PL. 10) that he obtained a degree from University of Ibadan in 1979 and that he worked with Afrinvest between 1994 to 2016. The information in exhibits PL. 11 and PL. 10 differ only on the year of graduation from University of Ibadan and the period 1st respondent worked at Afrinvest. Such differences may create doubt about the truth of the information in either exhibit PL. 10 or PL. 11. But they cannot be proof that the said information in the affidavit in exhibit P10 is false. Such proof would require evidence beyond a different information in a previous affidavit of the informant.

The kind of evidence required would depend on the information.

To prove that the information in exhibit PL. 10 that 1st respondent obtained a degree certificate from University of Ibadan in 1979 is false would require evidence from the said University showing that he did not attend the said University or did not obtain the said degree from the University in 1979 or at all. To prove that the information in exhibit P10 that 1st respondent worked with Afrinvest between 1994 and 2016 is false, would require evidence from Afrinvest showing that he worked there at a different period or did not work there at all. False information in INEC Form EC9, an affidavit, amounts to lying on oath or false oath. By virtue of S.31(1) and (2) of the Electoral Act 2010 as amended, the 3rd respondent was bound to receive the affidavit and the documents submitted by the 1st respondent as indicating that he has fulfilled all the constitutional requirements for election into the office of Governor of Edo State. Such a false declaration on oath to a public officer bound by law to receive it as evidence of the facts declared therein is no doubt a crime. Being a crime, the allegation of its commission must be proven beyond reasonable doubt. This Court had in Abubakar & Anor V INEC & Ors (2020) 12 NWLR (1737) 37 at 110 made this restatement. The crime is established once it is shown that the information is false. The nature of the information in issue in this case requires evidence of more than a previous inconsistent statement of the declarant to prove that the current information is false. Since the information on the year the 1st respondent obtained a bachelor degree from University of Ibadan is in the records of that University or in an original or primary copy of the said degree or school leaving testimonial issued by them to the graduate, only such original copy of the certificate or testimonial or a certified true copy of same or other documents issued by the University can be proof that the information is false. Equally, since the information concerning 1st respondent working at Afrinvest between 1994 and 2016 is in the record of the company, it is evidence of such records that can prove that the information that he worked there up to 2016 is false.

The appellants relied on the features or contents of the photocopy of the University of Ibadan Degree Certificate that accompanied INEC Form CFOOI (exhibit P. 11) in 2016 particularly the facts that it had no date and was signed by only the Vice Chancellor to show that the same University of Ibadan Degree Certificate that accompanied INEC Form EC9 in 2020 which is dated and signed by the Vice Chancellor and the Registrar of the University is forged or false. They also relied on differences between the photocopies of A/Level WAEC Certificate of June, 1976 and the Testimonial issued by the Institute of Continuing Education in Benin City on the subjects 1st respondent entered for and wrote in the Advance Level Examination and the year of the examination to prove that either of the two documents is forged.

​

Such differences create doubt or suspicion about the genuineness of the two documents, but the doubt or suspicion is of no moment without proof that either of them is forged. Forgery being a crime, allegation of its commission must be proved beyond reasonable doubt. S.135(1) of the Evidence Act 2011 provides that “If the commission of a crime by a party to any proceedings is directly in issue in any proceeding civil or criminal it must be proved beyond reasonable doubt.”

The basic evidence required to prove that the University degree certificate attached to INEC Form EC9 is forged is a disclaimer from the University of Ibadan that is said to have issued the certificate. The evidence required to prove that the A/Level WAEC Certificate attached to Form EC9 is forged is a disclaimer from WAEC that conducted the examination and issued the result and certificate. See the restatement of this law by this Court in Maihaja v. Gaidam (2017) LPELR – 42474 (SC) and Mohammed V Wammako (2018) All FWLR (Pt.937) 1608 at 1630. It is curious that the appellants did not produce evidence of any official disclaimer from the University of Ibadan of the degree certificate attached to the Form EC9 or any official disclaimer of the A Level WAEC Certificate by WAEC. Without evidence from the institution or body that is purported to have issued any certificate or other document stating that it did not issue the certificate or document or that any part of the certificate or document is not made by it, it would be idle and useless to contend that it is forged.

​In the light of the foregoing, I hold that the Court of Appeal correctly affirmed the decision of the trial Court that the appellants did not prove their case by any standard of proof. The case of the appellants collapsed at the close of their evidence and there was no case for the defendants to rebut or defend.

The 1st defendant did not rest on the failure of the plaintiffs (appellants) to prove that any of the information in INEC Form EC9 is false and that any of the educational credentials attached to Form EC9 is forged. He proceeded to elicit evidence to explain the alleged apparent differences between the 1st respondent’s Form CFOO1 of 2016 and his Form EC9 of 2020 and the documents attached to each and show that no information in Form EC9 is false and that none of the 1st respondent’s educational credentials attached to Form EC9 is forged.

The 1st respondent tendered through DW1 the original copies of his June 1973 WAEC Certificate (exhibit D1) June 1976 Higher School Certificate issued by WAEC (exhibit D2) Bachelor of Arts Certificate issued by University of Ibadan (exhibit D4). He elicited evidence through DW1, DW2 and DW3 to explain that there are no actual differences between the photocopy of the degree certificate attached to Form CF001 in 2016 and the photocopy of the same certificate attached to Form EC9. DW1 who made the photocopies explained that the photocopier did not capture all the features or contents of the original degree certificate. Exhibits D1, D2, D3 and D4 were tendered to show that the 2016 photocopy did not capture all the features of the certificate because of how it was photocopied and the fact that the paper on which it was copied was smaller than the original degree certificate.

DW2 who is the Deputy Registrar (Legal) of the University identified exhibit D4 as the Original copy of the University of Ibadan Degree Certificate issued to the 1st respondent. He also explained the differences between the 2016 photocopy of the certificate and the original copy as an anomaly resulting from using a paper smaller than the certificate to photocopy the certificate.

​

The Court of Appeal correctly affirmed the finding of the trial Court that the reason for the minor variation or anomaly contained in the photocopy which was made the pivot of the appellants was adequately explained.

In the light of the foregoing, I hold that the Court of Appeal correctly affirmed the decision of the trial Court that the appellants did not prove their case.

In the light of the above determinations, no useful purpose would be served considering the other issues and even the cross-appeal.

On the whole this appeal fails as it lacks merit. It is accordingly dismissed.

The cross- appeal having become academic is hereby struck out. The appellants shall pay costs of one million naira to the 1st respondent.

---

SC.CV/376/2021