Cross River guber: No respite yet for Ayade

• As Plaintiff Goes To Apex Court
The recent National Judicial Council (NJC) decision to punish two high court judges in Niger State for parading two age declarations, has thrown up fresh controversies among lawyers over the Cross River State gubernatorial election. The Appeal and Federal High Courts in Abuja ruled separately that they did not find fault in the conflicting age declarations by the state Governor, Senator Ben Ayade in a pre-election matter instituted against him by Mr. Joe Agi, SAN of the People’s Democratic Party (PDP).

It was based on this development that some lawyers argued that the position of the NJC clearly contradicts the judgments of the Federal High Court and that appellate division in the case of Agi versus Ayade and two others in Abuja, even as it has also been argued that the Niger case has no relevance to Agi and Ayade matter.

Agi had dragged Ayade to the Federal High Court claiming among other reliefs that Ayade was parading conflicting age declarations, stressing that by the constitution of the party the respondent was not qualified to be governorship candidate. Agi therefore prayed that having come second in the primaries; he should be declared the candidate of the party.

On July 31, 2015, Justice Abdul Kafarati, ruling on the Suit No. FHC/ABJ/CS/25/2015 between Agi, SAN v. PDP and two orders, dismissed the case on grounds that the matter was not proved beyond reasonable doubt. That judgment was also upheld by three Court of Appeal Judges led by Justice Tinuade Akomolefe in subsequent judgments.

But still not satisfied with the lower courts’ judgments, Agi took the matter to the Supreme Court. Through his lawyers, Agi argued that “the decision of the lower court upholding the preliminary objections of the 1st (PDP) and 3rd (Ayade) Respondents only dealt with the one ground of the Appellant’s case without considering the ground of the Appellant’s case bordering on presentation of conflicting age(s) declaration by the 3rd Respondent to the 1st Respondent, contrary to Article 14 (b) and 15 (2) of the Electoral Guidelines for the Primary Elections 2014 of the Peoples Democratic Party (Exhibit JA5) and the Electoral Act”.

A senior lawyer, Chief Utum Eteng, volunteering a legal opinion on the rulings of the lower courts vis-à-vis the NJC decision, said, “I am not here to contradict the court, because it is only the higher court that can contradict the judgments of the Appeal Court. I am only speaking as an independent person giving a legal opinion.

“I am sure the NJC was presented with two affidavits of the age declaration. One person cannot have two age declarations. How come one person should have two age conflicting declarations and without taking steps before now to disown one? It is the Supreme Court that has an answer to that.”

Yet in his opinion, a Lagos-based legal practitioner, Mr. U. C. Ikegbule, noted that “some of the decisions taken by the NJC have once again brought to the fore, the ills of age falsifications, especially in public lives and the effort by the judiciary to stamp out the ugly trend.” He argued that in carrying out that responsibility, the society expects the judiciary to be consistent in its observance and enforcement of its constitutional duties, being the last hope of the common man.

“Reflecting on the above, not a few Nigerians have had a throwback at an equally celebrated case of Joe Agi’s Vs PDP & others, where the appellant sought to overturn the verdict of the Federal High Court, Abuja Division, which declined his prayer to declare Prof. Ben Ayade as unqualified to stand as the candidate of the Peoples’ Democratic Party (PDP) on the ground of presenting three dates of birth (2nd March 1968 – statutory declaration of age, 2nd March 1969 contained in INEC form CF001 and 2nd March 1966 being student bio-data submitted by the University of Ibadan, which was the date of birth he gave at the time of registering as a student) for the purpose of seeking nomination as the governorship candidate of the party during the Cross River State 2015 governorship primary election,” Ikegbule added.

He disclosed that details of the matter, now at the Supreme Court, are that the appellant had sought a declaration that the 3rd Respondent (Prof Ben Ayade) was not qualified to contest in the primary election for the governorship of the state conducted by the 1st Respondent (PDP) on the ground amongst others, that the 3rd Respondent falsified his age in the nomination forms he submitted for the election.

The trial court had held that it lacked the jurisdiction to entertain the matter, even as it dismissed it on its merits, describing it as being frivolous. Also appeal against that decision was equally dismissed at the Court of Appeal.

In the judgment of the Court of Appeal, the learned Justices reproduced verbatim Article 14(b) of the Electoral Guidelines for primary elections 2014 of the PDP, which states that an aspirant to the gubernatorial primary who “presents a false certificate or declaration of age for the purpose of the primary election or for any other purpose” shall be disqualified.

Article 5(2) of the PDP Electoral Guidelines, 2014 also places a duty on an aspirant to ensure that all information supplied by him in the relevant nomination form are true and correct to the best of his knowledge and belief. The guideline provides for the sanction of disqualification for failure by an aspirant to ensure (on oath) the correctness of the information he supplied for the purpose ofseeking nomination.

Furthermore, Section 87(9) of the Electoral Act, 2010 as amended, which provides that “notwithstanding the provisions of this Act or rules of a political party, an aspirant who complains that any of the provisions of this Electoral Act and the guidelines of a political party have not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court or the High Court of a State or FCT, for redress.”

While admitting that the 3rd Respondent (Prof. Ben Ayade) who had conceded to having presented false age declaration, the Court of Appeal nevertheless held that the intention of the law makers is not to disqualify a candidate based on any alleged false declaration in the nomination forms, and that rather, the law was made to disqualify any candidate who makes false declaration of age in order to take advantage of the constitutional requirement of age (35 years).

Consequently, the Appellant, Joe Agi, SAN, who seemed not to be impressed with that interpretation, is presently at the Supreme Court for a further judicial review of the matter. Ikegbule remarked that “ordinarily, age falsification or age fabrication ought to be a prima facie issue considering the biological certainty that every individual has one day of birth that is recorded in a birth certificate (in hospitals births) or one sworn affidavit where the former is justifiably non-existent.”

The point must be made; he stated further, that no one is morally, logically or legally supposed to have more than one date of birth. To have more than one date of birth is to imagine an individual being born more than once, a contradiction to natural order.

The lawyer further contended that “an age falsifier” will be prone to ‘doctoring’ or ‘padding’ many other documents in breach of public trust and set policies. “The legislation against age falsification and other forms of electoral abuses militating against our country today is aimed at ensuring a level playing ground for contestants and to test the integrity and credibility of persons involved in public activities and duties. To that extent, the electoral system has embedded checks against perpetrators of this misdeed and will ultimately flush them out to avoid multiple moral infection and unethical influences,” he declared.

When confronted with the new twist, counsel to the governor, Mr. Paul Erokoro (SAN), said the governor will file his defense to the appeal, stressing, “We await the decision of the Supreme Court.” His words: “The appellant has just filed his papers and the governor has several weeks to file his defense and we are confident his appeal in the Supreme Court will not enjoy a better fate than his matter at the High Court or his appeal at the Court of Appeal. The truth is that he (Agi) does not have a good case. He got 11 votes at the primaries against the governor’s 752 at the primaries. How would you score 11 votes and expect to upset the man who scored 752.”

On age falsification and the NJC decision on the two judges, Erokoro explained that “there is absolutely no similarity at all.” “The attempt by Joe to give the impression that the governor falsified his age is not even sincere. When Joe filed his case originally, he did not make the issue of age an issue, it was not an issue. The only reason Joe went to court was that the governor did not pay his membership dues of just N600. Not N600, 000 or N6m. A serving senator, who was required by the PDP constitution to contribute 10 percent of his earnings to the party running into millions of naira, yet, that is the man you say did not pay N600 and that is your basis for challenging his nomination.”

Erokoro disclosed that It was much later that Agi stumbled on the fact that the governor’s nomination forms carries 1969 as his date of birth whereas the certificate carries 68; “so It was not an issue at all.” Speaking further, Ayade’s counsel declared: “Nobody noticed it, the party, INEC did not notice it and when he stumbled on it and tried to make an issue of it, that the age declaration given by the governor differs from the age he put in the nomination form , the governor said yes it is true, I just made a mistake. The mistake was made because my aides wrote this thing down for me and I signed, I did not read it. If I want to falsify my age why should I present birth certificate that shows that I was born 1968. If I wanted to falsify my age is it not the birth certificate that I will change. There were two declaration of age in the file each showing same age 1968. So to say the governor falsified his age is just a cheap lie. The officers who helped the governor fill the form (and) made the mistake came out swore to an affidavit.

“You cannot compare that to Judges who when they were joining the Civil Service gave a particular age of declaration and later on they changed and swore to a different affidavit changing their ages…but here (in Agi versus Ayade) there is nothing like that and you are trying to tell one big lie…He is just scandalizing the man hoping that somehow the Judges will make a mistake and give him the governorship. How can a man falsify his age without any need, to gain what advantage?”