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Presentation of forged documents to INEC by a candidate for any election disqualifies the culprit

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ISA MOHAMMED WABU & ANOR v. HON. MOHAMMED GARBA GOLOLO & ORS CITATION: (2019) LPELR-48755 (CA)

In the Court of Appeal
In the Jos Judicial Division
Holden at Jos

ON FRIDAY, 1ST NOVEMBER, 2019
Suit No: CA/J/EPT/NAHR/BA/374/2019

Before Their Lordships:

UCHECHUKWU ONYEMENAM, JCA
MUDASHIRU NASIRU ONIYANGI, JCA
BOLOUKUROMO MOSES UGO, JCA

Between

1. ISA MOHAMMED WABU
2. NEW NIGERIA PEOPLES PARTY (NNPP) Appellant(s)

And

1. HON. MOHAMMED GARBA GOLOLO
2. ALL PROGRESSIVES CONGRESS (APC)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
-Respondent(s)

LEAD JUDGMENT DELIVERED BY BOLOUKUROMO MOSES UGO, J.C.A.

FACTS OF THE CASE
This appeal is against the decision of the State and National Assembly Election Tribunal sitting in Bauchi.The facts of the case are that on February 23, 2019, the 3rd respondent (INEC) conducted general elections into the House of Representatives across the country, including Gamawa Federal Constituency of Bauchi State. The 1st appellant and 1st respondent were candidates in the Gamawa Federal Constituency election, just as they were four years back in 2015. It is a requirement of the Electoral Act 2010 under which they contested the said election that each candidate submits to INEC Form CF001 containing particulars of their qualification for the election.

The 1st appellant and 1st respondent filled the said form CF001 and submitted it along with their certificates to INEC for both the 2015 and 2019 elections. Among the certificates the 1st respondent presented to INEC for both elections are a Bachelor of Science (B.sc) and Masters in Business Administration (MBA) degrees he claimed to have obtained from the Lagos State University (LASU) in 2002 and 2005. He also presented his National Youth Service Corp (NYSC) Discharge Certificate dated September 2003. In the election, which eventually held on February 23, 2019, the 1st respondent was declared, elected and returned by INEC, having polled majority votes of 16,605, as against the 1st appellant who came second with 12, 748 votes.

The appellants contended that the Bachelor of Science (B.sc) and Masters in Business Administration (MBA) degrees and the National Youth Service Corp (NYSC) Discharge Certificates the 1st respondent presented to INEC to contest the elections were all forged, so he was disqualified from contesting. They petitioned the State and National Assembly Election Tribunal sitting in Bauchi to challenge his election on that sole ground. All three respondents filed replies to the petition and trial proceeded and parties gave evidence in proof of their respective cases.

In its judgment, the three-man trial tribunal dismissed the petition on the ground that the appellants failed to prove beyond reasonable doubt their allegations. The appellants being dissatisfied appealed to the Court of Appeal.

ISSUES FOR DETERMINATION
The appeal was determined on a sole issue, as follows:
“Whether the trial tribunal was right to have dismissed the petition for lacking in merit.”

APPELLANT’S COUNSEL SUBMISSIONS
On the sole issue, the appellant submitted that they proved beyond reasonable doubt their allegation of disqualification of 1st respondent for presenting forged documents to INEC. According to them, the best evidence to prove false certificate is a report from the institution, which purportedly issued it and cited Mohammed v. Wammako (2016) 7 NWLR (PT 1619) 573 @ 590 (SC). That they gave evidence of the officers from LASU and NYSC and tendered documents and that the evidence of these witnesses was not contradicted and as such deemed admitted. According to them, it is irrelevant whether it was the respondent or any other person that forged the certificate and it suffices that the certificate he presented to INEC was forged.

They argued further that their case was that the 1st respondent did not attend LASU and did not participate in NYSC programme and so was not issued any certificate at all by the said institutions so the ones he presented to 3rd respondent from those two institutions were all false and forged.

The appellants faulted the trial tribunal’s decision that even if the B.sc., MBA and NYSC Discharge Certificate of the 1st respondent presented to INEC were all forged, he cannot be disqualified since he had the minimum qualification required by Section 65 of the 1999 Constitution, by reason of his Senior School Certificate. Section 65 of the Constitution, they submitted, is subordinate to Section 66 which makes presentation of forged certificate by a candidate to INEC a disqualifying factor so it is immaterial whether 1st respondent possessed the requisite minimum educational qualification under section 65.

RESPONDENT’S COUNSEL SUBMISSIONS
On the sole issue, the respondents submitted in support of the trial tribunal that since the 1st respondent possessed a Senior School Certificate, which is the minimum educational qualification for contesting the House of Representatives election, he could not be disqualified on account of the degrees and NYSC Discharge certificate he presented to INEC for the election. They cited dicta from Agi v. PDP (2016) LPELR-42578 (SC) and Faleke v. INEC (2016) 18 NWLR (PT 1543) 61 @ 148 (SC) in support of their argument.

They submitted that the entire case of the appellants being grounded on the criminal allegation that the 1st respondent presented forged certificates to INEC to contest the 2015 and 2019 elections, ought to be proved beyond reasonable doubt and that they failed to do this because they did not place before the trial tribunal the alleged forged certificates or the genuine ones from which they were forged and that this failure was fatal to their case. The 1st respondent in particular further argued that in so far as it was proved without doubt that he possessed Senior Secondary School Certificate which is the minimum educational qualification for contesting election into the House of Representatives, whether or not he actually possessed the degrees and NYSC Certificates he presented to INEC was of no consequence so the trial tribunal’s decision to that effect was unimpeachable.

RESOLUTION OF ISSUES
In resolving the sole issue, the Court held that for the appellants, to succeed in their allegation of disqualification of the 1st respondent on grounds of his having presented forged documents to the 3rd respondent (INEC) does not have to prove that he was the one who actually forged the said documents. All they need to prove, beyond reasonable doubt, is that the said documents he presented were forged and in proving the presentation of the forged certificate to INEC, the person asserting the positive does not have the duty to prove that the person who presented the forged certificate was guilty of forgery, but that he made the presentation in the first place and that the certificate has been proved beyond reasonable doubt to be forged. That this is the intendment of the spirit of Section 66(1)(i) of the

Constitution.
According to the court, from the clear provisions of Section 66 of the 1999 Constitution, there is no doubt that presentation of forged documents to INEC by a candidate for any election under the Constitution, including House of Representatives election, disqualifies him, and that is regardless of whether such candidate possessed the qualifications set out by Section 65 of the same Constitution. That Section 65 of the 1999 Constitution makes itself subject to Section 66 and that when something is made subject to another it means it is inferior to and controlled by the thing to which it is subject, just like a subject is always inferior to its head. That in Ibe & Anor v. Igbokwe & Ors (2012) LPELR-15351 (CA) at page 34-35, Section 66(1)(h) of the 1999 Constitution was upheld as a disqualifying factor.

According to the court, the trial tribunal was therefore wrong when it held that a person who is proved to have presented forged documents to INEC and so disqualified under Section 66 of the Constitution may still be qualified to contest election so long as he holds a School Certificate or its equivalent under Section 65 of the Constitution.

On whether appellants actually proved beyond reasonable doubt that the B.Sc, MBA and National Youth Service Corp (NYSC) Discharge Certificate of the 1st respondent forged, the court stated relying on the decision in Agi v. PDP (2016) LPELR-42578 (SC) P.115 that “The act of making a false document or altering a genuine one for same to be used is what forgery is.” According to the court, this definition makes it clear that forgery takes either of two forms. It could be the making of a false document, in which case there would be no genuine one to be tendered to make a comparison. The other form of forgery is altering of a genuine document to be used as real. That it was therefore incorrect to hold that to prove forgery, two sets of documents, the forged one and genuine copy, must always be tendered as this would amount to asking for the impossible.

According to the Court, the ‘best evidence’ to prove forgery of certificate is a report from the institution that purportedly issued it and that in this case, the appellants not only subpoenaed witnesses from the very institutions but also the witnesses additionally tendered certificates and certified true copies of documents issued by their institutions to support appellants’ contention that they, LASU and NYSC, did not issue the 1st respondent the certificates he presented to INEC.

That the evidence of the appellants witnesses and the documents presented by LASU that it does not run and has never run the particular Masters in Business Administration which the 1st respondent claims to have obtained a degree from and the letter from INEC denying issuing to the 1st respondent any certificate being certified true copies and certificates, are presumed to be genuine and authentic documents from the sources, LASU and NYSC, they claim to have been brought from by Section 146 of the Evidence Act 2011. Furthermore, that by Section 145 (2) of the same Evidence Act 2011, the Court can presume a fact as proved unless and until disproved. That no such evidence was adduced by 1st respondent or anyone else in this case so the presumption of genuineness and authenticity remains intact and the trial tribunal was wrong when it tried to doubt them and casually dismissed their contents and their evidence.

In conclusion, the Court held that the appellants proved beyond reasonable doubt that the 1st respondent presented forged documents in the B.sc. MBA and NYSC Discharge Certificates he presented to INEC in 2014 and 2018 to contest the House of Representatives Election for Gamawa Federal Constituency of Bauchi State in both 2015 and 2019 and as such stood automatically disqualified to contest the said elections or even any elections in the future.

HELD
he Court found merit in the appeal and accordingly allowed same. The decision of the Tribunal was set aside.

Appearances:
Hassan U. El-Yakub, Esq. with him, Mrs. Blessing A. Esinwoke -For Appellants
M. A. Magaji, S.A.N. with him, (Kenechukwu Azie, Esq.,
Muzzammil Yahaya, Esq., Affis Matanmi, Esq., -For 1st Respondent
Ifeoma Johnson, Esq. and Sandra Raluchi Ozoemena, Esq.
M. M. Maidoki Es., with him, J.P. Dukut, Esq. – For 2nd Respondent
M. B. Yusuf, Esq., -For 3rd Respondent

Compiled by LawPavilion


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