Mr. Babatunde Falola & Anor V. Mr. Samuel Ademola Adejumobi & Anor (2008)
LawGlobal-Hub Lead Judgment Report
KUMAI BAYANG AKAAHS, J.C.A.
In the House of Assembly elections conducted by the 2nd Respondent on 14th April, 2007, the 1st Petitioner was the candidate who contested the election on the platform of the Action Congress (AC) for the Shaki East/Atisbo seat in the Oyo State House of Assembly while the 1st Respondent was sponsored by the Peoples Democratic Party (PDP) for the same Constituency. At the conclusion of the election the 2nd Respondent declared the 1st Respondent the winner of the election having scored the highest votes in the said election. The Petitioners were dissatisfied with the results declared and filed a Petition before the Governorship and Legislative Houses Election Tribunal of Oyo State. In the Notice of Petition dated 11th May, 2007 and filed on the same day which was later amended on 14th June, 2007, the reliefs which the Petitioners now Appellants sought were:-
“1. that it may be determined that the 1st respondent Mr. Samuel Ademola Adejumobi was not duly and/or validly elected as member House of Assembly, Oyo State, and that his election was void and he ought not to have been returned.
2. An order for the Tribunal disqualifying the 1st Respondent, Mr. Samuel Ademola Adejumobi for the election to the State House of Assembly (Shaki East/Atisbo Constituency) Oyo State held on the 14th of April, 2007 and declaring the 1st Petitioner, Mr. Babatunde Falola, the 1st runner-up as the winner and return him as duly elected or in the ALTERNATIVE an order of the Tribunal nullifying the election of the 1st Respondent held on the 14th April, 2007 and directing that fresh election be held in accordance with the provisions of the Electoral Act of 2006.
The Petitioners based their Petition on the following grounds:-
(i) The 1st Respondent had at the time of the election been indicted for murder, arson and looting of properties at Irawo-Owode by a Judicial Commission of Inquiry set up by the Oyo State Government headed by Hon. Justice Adekola (Rtd) which indictment has been accepted by the Oyo State Government as published in Oyo State Gazette No.19 Vol. 31 published on the 14th day of September, 2006.
(ii) The 1st Respondent presented a fake certificate to INEC, as he never obtained any PGDPA and MPA from Ambrose Ali University, Ekpoma or any University at all as claimed by him in his INEC form CFOOI and the certificates/notification of results to that effect are fake.
The third ground on the 1st Respondent’s failure to pay his tax as and when due and obtaining a valid tax clearance certificate was abandoned during the pre-trial stage leaving grounds 1 and 2 as the basis for the Petition.
Evidence was called and documents tendered and learned counsel submitted written addresses. At the close of the case the Tribunal dismissed the Petition. Being dissatisfied with the judgment, the Petitioners as Appellants appealed against the said judgment and identified the following four issues for determination:-
(i) Whether from the pleadings and evidence before the Tribunal, the Tribunal was Justified in holding that the indictment for murder, arson and looting of properties do not constitute fraud within section 107(1)(h) of the 1999 Constitution of the federal Republic of Nigeria 1999.
(ii) Whether from the pleadings and evidence before the Tribunal, the Tribunal was justified to have construed the indictment against the 1st respondent to mean indictment for communal disturbance rather than fraud.
(iii) Whether from the pleadings and evidence before the Tribunal, the Tribunal was justified to hold that Ademola Adejumobi the person indicted was not the 1st respondent.
(iv) Whether or not the Petitioner has failed to discharge the onus of proof required of him that the 1st Respondent’s Post Graduate Diploma in Public Administration (PGDPA) and Master in Public Administration (MPA) submitted to INEC were forged and a fortiori fake.
Issues (i), (ii) and (iii) can be taken together since they are concerned with what constitutes an indictment for fraud as contained in section 107(i)(h) of the 1999 Constitution and the person indicted in the Gazette and issue (iv) has to do with whether the presentation of forged certificate by 1st Respondent to INEC was established.
ISSUES I, II & III.
Learned counsel for the Appellants referred to section 107(1) of the 1999 Constitution; section 441 of the Criminal Code and the definition of fraud in Black’s Law Dictionary 7th Edition and argued that as arson and looting falls under moral turpitude, they can be said to be fraudulent conduct and the onus is on the 1st Respondent to show that fraud does not include murder, arson and looting of properties. He submitted that the 1st Respondent is caught by the Gazetle as the nature of his indictment amounted to fraud in law. He also contended that from the pleadings and evidence the Tribunal was not justified to have construed the indictment against the 1st Respondent to mean indictment for communal disturbance rather than fraud. And as to the person indicted, learned counsel submitted that the alibi of Mr. Ademola Adejumobi was punctured by his admission under cross-examination that he is the only Ademola Adejumobi in his family who attended Ambrose Alli University centre for Ibadan between the period in issue in 2004.
It is necessary to establish the identity of the person indicted. At page 20 of the record are the names of those who were found to have participated in the shooting, burning of houses and killing of persons during the disturbance of 9th and 10th January, 2004. Ademola Adejumo is the 22nd person on the list while the names of the 1st Respondent are Samuel Ademola Adejumobi. It was not suggested to the 1st Respondent that Adejumo is the same as Adejumobi. In paragraph 4 of his Reply to the Petition he categorically denied having been indicted by a Judicial Commission of Inquiry for murder, arson or looting of properties at Irawo Owode. He specifically averred as follows:-
“4. With particular reference to paragraph 6 of the petition 1st Respondent denies ever been indicted for murder, arson and looting of properties at Irawo Owode by any Judicial Commission of Inquiry referred to in the said paragraph or any commission of inquiry whatsoever and the 1st Respondent hereby put the Petitioners to the strictest proof of the claim of indictment”
Without evidence coming from the Appellants or an admission by the 1st Respondent that Adejumobi and Adejumo belong to the same person the presumption is that the two names belong to different people just as Belgore JS.C (as he then was) held in ESENEWO v. UPKONG (1999) 6 NWLR (pt.608) 611 that:-
“There is a world of difference between “J.E. Esenowo” and E.J. Esenewo”.
In that case it was the initials that differed but the surname was the same.
It is needless to consider the issue of indictment since the Appellants failed to prove that it was the 1st Respondent that was actually indicted by the Judicial Commission of Inquiry. In any event the definition which the Appellants are urging this court to make on fraud to include murder, arson and looting is too strenuous. Murder, arson and looting cannot be accommodated in a definition for fraud. The elements that constitute the crimes of murder, arson and looting are not the same as the elements that constitute the offence of fraud. Learned counsel is seeking to stretch the meaning of murder, arson and looting to accommodate fraud so as to justify the submission that the 1st Respondent was indicted for fraud and consequently was not qualified to contest the election into the Oyo State House of Assembly as stipulated in section 107(1)(h) of the 1999 Constitution which states that:-
“107-(1) No person shall be qualified for election to a House of Assembly if-
(h) he has been indicted for embezzlement or fraud by a Judicial Commission of Inquiry or an Administrative Panel of Inquiry or a Tribunal set up under the Tribunals of Inquiry Act, a Tribunal of Inquiry Law or any other law by the Federal and State Government which indictment has been accepted by the Federal or State Government respectively.”
For an indictment for murder, arson and looting to stand a person must have been convicted by a competent court of law and has been sentenced either to death or a term of imprisonment. See: section 107(1)(c) of 1999 Constitution. See also GARBA v. UNIVERSITY OF MAIDUGURI (1986) 1NWLR (pt. 18) 550.
An indictment for the offences of murder, arson and looting for which there has been no conviction by a competent court will not disqualify a person from contesting an election.
ISSUES IV.
Learned counsel for the Appellants referred to the evidence of PW2 who is the Registrar of Ambrose Alli University and Exhibit PE3 which is the result approved by the Senate of the University and argued that if the Senate approved the result on 15th June, 2007 which was long after the election of 14th April, 2007, the notification of result which 1st Respondent purportedly claimed to possess at the time of the election could not be genuine documents and the onus of proving the genuineness of the document automatically shifted to the 1st Respondent.
Section 106 of the 1999 Constitution provides for qualification for membership of House of Assembly. The section states as follows:-
“106 Subject to the provisions of section 107 of this Constitution a person shall be qualified for election as a member of a House of Assembly if:
(a) he is a citizen of Nigeria
(b) he has attained the age of thirty years;
(c) he has been educated up to at least the School Certificate level or its equivalent; and
(d) he is a member of a political party and is sponsored by that party”
The grouse of the Appellants concerning the 1st Respondent’s qualifications is that he presented fake Post Graduate Diploma in Public Administration (PGDPA) and Masters in Public Administration (MPA) to the 2nd Respondent. There is no dispute that he has been educated up to School Certificate level. The complaint is hinged on section 107(1)(i) of the Constitution which provides that-
“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”
At page 85(b) of the records, Mr. Edopayi Ikponmwosa, the Registrar of Ambrose Alli University, Ekpoma was subpoened and in answers to questions regarding the Post Graduate Diploma dated 25/10/05 and the Masters in Public Administration Statement of Result dated 11/7/06 he said that the Post Graduate Diploma dated 25/10/05 was unknown to them and the statement of result was not issued by the University but under cross examination he admitted that the 1st Respondent just passed his MPA and PGDPA. He went further to state that 1st Respondent’s name is contained in Exhibit PR3 and the examination that awarded MPA were taken in 2004-
“if the commission of a crime by a party to any proceeding is directly in issue civil or criminal, it must be proved beyond reasonable doubt” See also NWOBODO v. ONOH (1984) 1 SCNLR 1 at 17.
The argument by Appellants’ counsel that the onus of calling Oaikhinan Friday who signed Exhibit PE2 to attest to its genuineness was on the 1st Respondent has no legal backing. The Tribunal was perfectly right in dismissing the Petition on all the grounds filed.
I therefore find that there is no merit in the appeal and it is hereby dismissed. The declaration and return of the 1st respondent as the duly elected member representing Shab East/Atisbo Constituency in the Oyo State House of Assembly is hereby further affirmed.
The 1st Respondent is entitled to costs which I assess at N30,000.00 against the Appellants.
Other Citations: (2008)LCN/2676(CA)
