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Home » Nigerian Cases » Court of Appeal » Alh. Kashim Ibrahim Imam & Ors V. Senator Ali Modu Sheriff & Ors (2004) LLJR-CA

Alh. Kashim Ibrahim Imam & Ors V. Senator Ali Modu Sheriff & Ors (2004) LLJR-CA

Alh. Kashim Ibrahim Imam & Ors V. Senator Ali Modu Sheriff & Ors (2004)

LawGlobal-Hub Lead Judgment Report

OGBUAGU, J.C.A.

This is an appeal against the decision/judgment of the National Assembly/Governorship and Legislative Houses Election Tribunal for Borno State sitting at Maiduguri delivered on 2nd March, 2004 – Coram: Hon. Justice Kulu Aliyu – Chairman, Hon. Justice N.P. Emehelu, Hon. Justice L.M. Bako, Hon. Justice M.O. Oyanna and Hon. Justice I.I. Ejiofor – members.

The facts of the case briefly stated are that the appellants are the petitioners before the Election Tribunal for Borno, State. They jointly filed the petition challenging the election and return of the 1st and 2nd respondents as Governor and Deputy Governor respectively of Borno State in the election to the office of Governor of Borno State which took place on 19th April, 2003.

The 1st and 2nd petitioners/appellants, were candidates sponsored by the 3rd appellant – Peoples Democratic Party (PDP) while the 1st and 2nd respondents, were candidates sponsored by the All Nigeria Peoples Party (ANPP).

At the end of the said election, the 3rd respondent, declared and returned the 1st and 2nd respondents as winners or duly elected having scored a total of 581,880 votes as against 341,537 votes scored Dissatisfied with the result of the election, the appellants filed the petition on 19th May, 2003, challenging the return of the 1st and 2nd respondents mainly on three (3) grounds – namely, non-qualification and disqualification; the election being invalid by reasons of being fraught with numerous illegalities, corrupt practices and non-compliance with the provisions of the Electoral Act; and that the 1st and 2nd respondents, were not duly elected by a majority of lawful votes cast at the election.

Issues were joined by the respondents in their pleadings. At the trial, the petitioners/appellants, called four (4) witnesses and filed a counter-affidavit to the affidavit of one Mr. Ian Wilfred Goatman. The petitioners/appellants (hereinafter called the “the appellants”), and the 3rd respondent – INEC led evidence. While the 3rd to 12th respondents called one (1) witness, the 1st and 2nd respondents, rested their case on that of the appellants and relied on the said affidavit of Mr. Goatman which was deposed to pursuant to the application by Ali, Esq. (SAN) and was granted by the tribunal, on 13th December, 2003.

The tribunal, after the written addresses of the learned counsel for the parties, in a considered judgment, dismissed the petition. Aggrieved/dissatisfied with the said decision(s), the appellants have appealed to this court.

There are two (2) notices of appeal filed by the appellants. The first one is that filed on 14th January, 2004 containing four (4) grounds of appeal which read as follows:

“1. The learned trial Judges of the Election Tribunal erred in law when they admitted petitioners (sic) INEC Forms CF001 and CF002 which are not specifically pleaded nor facts relating to the documents pleaded in the petition and replies of the respondent and thereby occasioned surprises and miscarriage of justice.

Particulars of Error

(a) The law is that parties as well as the court are bound by their pleadings and documents not pleaded are not admissible.

(b) The Forms CF001 and CF002 are not evidence of facts pleaded.

(c) Neither of the parties pleaded facts of INEC forms and the documents attached therewith.

(d) None of the witnesses to the petitioners was asked or confronted with any of the documents.

  1. The learned trial Judges of the Elections (sic) Tribunal erred in law when they admitted the respondents (sic) (meaning respondents’) INEC Forms CF001 and CF002, statement of result of Borno Teachers College for 2nd respondent, tax clearance certificates, Government Comprehensive Secondary Barna, (sic), West African Examinations Council Ordinary level, tax clearance certificate of the 1st respondent as evidence at the trial, when none of the parties pleaded any of the documents. Indeed parties pleaded specific educational qualifications and thereby occasioned a grave surprise and miscarriage of justice.

Particulars of Error

(a) These documents introduced new issues and elements into the case of the parties.

(b) The court has (sic) consistently in previous rulings refused documents sought to be tendered by the petitioners (sic) witnesses.

(c) None of the petitioners (sic) witnesses including the Chairman of the third petitioner was cross examined on these documents.

(d) The document (sic) is not relevant facts upon which issues are joined.

  1. The learned trial Judges of the Elections (sic) Tribunal erred in law when they permitted and allowed counsel of the 3rd to 12th respondents who had participated in the trial of the petition from inception of hearing to change position and become a witness to lead evidence of the 3rd to 12th respondents as a witness in the matter contrary to principles of fairness, justice and fair hearing established under section 36 of the Constitution of the Federal Republic of Nigeria, 1999.

Particulars of Error

(a) DW1 (Ibrahim K. Bawa, Esq.) is not a party in the proceedings but appeared as one of the counsel to 3rd to 12th respondents.

(b) The said Ibrahim K. Bawa, Esq. is not a legal adviser to the 3rd to 12th respondents but counsel who appeared for the 3rd to 12th respondents.

(c) The said DW 1 was in court (sic) throughout the proceedings and listened to all the witnesses before he appeared as a witness to the 3rd to 12th respondents.

The learned trial Judges of the Elections (sic) Tribunal erred in law in admitting documents not pleaded by either of the parties, and upon which issues were not joined on fact and the court (sic) refused failed and omitted to consider and apply the decisions of superior courts referred to the tribunal in submission.

Particulars of Error

(a) The court (sic) is bound by the decisions of the Court of Appeal and Supreme Court referred to in the submissions.

(b) Issues were not joined by the parties in respect of documents admitted as no facts were pleaded in respect of same by either of the parties.”

The reliefs sought in the said notice of appeal, are:

To: i. Allow the appeal.

ii. Set aside the ruling of the Honourable Tribunal.

iii. Reject the INEC Forms CF001 and CF002 in respect of the 1st and 2nd petitioners and INEC Forms CF001 and CF002 in respect of 1st and 2nd respondents together with all the unpleaded documents contained therein.

The next one is that filed on 12th March, 2004 containing therein, seventeen (17) grounds of appeal which read as fellows:

“1. The learned trial Judges of the Election Tribunal erred in law when they held as follows:

‘There is therefore no doubt that the allegation against a party that he submitted forged certificate is a criminal allegation going by the definition of forgery in section 363 of the Penal Code and the punishment for using forged documents, in section 366 of the same Code, so also the case of Ukpo v. Adede (2002) 13 NWLR (Pt. 755) 671. The allegation in paragraph 16(1) of the petitioners petition against the 1st respondent is a criminal allegation. Now what is the position of the law with regards to standard of proof required to discharge the burden in a criminal allegation? Section 138 of the Evidence Act”.

Particulars of Error in Law:

(a) Section 182 (1)(f) of the Constitution of the Federal Republic of Nigeria, 1999 specially (sic) provides for a disqualification of a “candidate who has presented a forged certificate” (not that he the candidate forged the certificate) as a ground for challenging an election.

(b) The Constitution does not impose any penal provision, it did not prescribed (sic) any sentence and the provision does not permit incorporation of specific provision of Panel Code by reference as ventured by the tribunal.

(c) All the elements of criminal offence under section 366 of the Penal Code are absent in section 182 of the Constitution and the election cannot (sic) ascribe criminality by interpretative exercise.

(d) The standard of proof in all matters listed in section 182 of the Constitution is on the balance of probability since no crime is an issue.

In the Alternative:

  1. The learned Judges of the Election Tribunal erred in law when they, held that the petitioners did not prove the allegation of presentation of forged certificate by the 1st respondent beyond reasonable doubt when there are uncontradicted facts which constitute the ingredient of the allegation.

Particulars of Error in Law:

(a) Presence of uncontradiction evidence on the record was sufficient to prove the allegation as the standard required was not proof beyond every iota of doubt.

(b) Election tribunal being suis (sic) (it is sui) generis can not (sic) rewrite the allegation against the 1st respondent.

  1. The learned Judges of the Election Tribunal erred in law when they held that the petitioners did not plead facts upon which the evidence of, non existence of, non accreditation and non approval of “center for economic and Political Studies, London and “the center for economic and political studies in association with Business Language School London” who purportedly issue (sic) exhibit (sic) C & C1 were based.

Particulars of Error in Law:

(a) Evidence at variance with pleadings implied evidence unrelated to the facts stated in the pleadings not evidence explaining the facts in issue, the Judges thereby misconceived the role of pleadings.

(b) The pleadings of the petitioners were sufficiently clear, the respondents countered the pleadings. The petitioner (sic) (it is petitioners’) evidence related to pleading of all the parties on the issue in controversy (sic) (it is controversy).

(c) The petitioners were not obliged to plead evidence with which to prove the facts pleaded in pleadings settled (sic) neither did the respondents ask for further and better particulars.

(d) The decision of the Judges occasioned a grave miscarriage of justice.

The learned Judges of the Election Tribunal erred in law when they held as follows:

“The evidence of PW1 as quoted above is full of contradiction (sic) while at one stage in examination-in-chief, the witnesses said the schools do not exist but under cross-examination, he said the schools exist in England. He again said the sources of his information he mentioned are not only sources. It therefore followings that his source of information as to the existence of the schools is not exhaustive and therefore not conclusive that the school that issued exhibits C and C1 does not exist”.

Particulars of Error in Law:

(a) The evidence relating to incorporated companies given by the witness is not the same as “the Center of Economic and Political Studies either alone or in association with business language school”.

The case before the tribunal was that “Center for Political and Economic Studies” which issued exhibits (sic) C and C1 did not exist as a school not the incorporated companies, which did not issue certificates.

(b) The tribunal Judges misconceived the evidence and came to wrong conclusion and this occasioned a grave miscarriage of justice.

  1. The learned Judges of the Election Tribunal erred in law in failing to consider the oral evidence of PW2 on oath together with the attached documents. The conclusion that the affidavit evidence of the witness and the documents attached are unhelpful to the case of the petitioner (sic) to the case of the petitioner is perverse.

Particulars of Error in Law:

(a) The learned Judges selectively considered only evidence that are unfavourable to the petitioners they destroyed them (sic) and failed to consider every evidence in favour of the petitioners (sic) (i.e. petitioners’) case.

(b) The documents and the affidavit evidence of PW2 laid bare the non existent (sic) (meaning existence) of any school, institution or training college who allegedly issued exhibits (sic) C and C1 which were regarded as invalid.

  1. The learned Judges of the Election Tribunal misdirected themselves on facts on the interpretation given to record of the Government of Borno State without proper advertence to other relevant documents before the tribunal and they came to a wrong conclusion and thereby occasioned a grave miscarriage of justice.

Particulars of Misdirection:

(a) The tribunal Judge (sic) failed to take into consideration evidence which are relevant to the case of the petitioner (sic) on the certificate. The conclusion that the school “center for economic and political studies existed is perverse.’

  1. The learned Judges of the Election Tribunal erred in law in their interpretation of section 91(3) of the Evidence Act by taking into consideration irrelevant matters and thereby came to wrong conclusions contrary to well settled interpretation given by the Supreme Court in the case of Anyaebosi v. R.T. Briscoe (Nig.) Ltd. (1987) 3 NWLR (Pt.59) 84, (1987) 6 SC (sic) (the page is not supplied) (but it is at page 15 and it is also reported in (1987) NSCC (Pt. II) Vol. 13 page 805 at 823).
  2. The learned Judges of the Election Tribunal erred in law when they held that the evidence of PW4 is full of contradictions such that no reasonable tribunal will believe it when such contradictions as to the issues in controversy were not identified and when the evidence considered as contradiction is inconsequential and without relevance to the matter under investigation and thereby, occasioned a grave miscarriage of justice.
  3. Learned Judges of the Election Tribunal erred when they held as follows-

“Exhibits F & F1 are original of exhibits (sic) B & B1, C & C1 exhibits (sic) F & F1 have the stamp and seal of the School Center of Economic and Political Studies London W2…. it has not been proved that the 1st respondent fraudulently and dishonestly submitted forged certificates to the 3rd respondent with the knowledge or having reason to believe that the certificates were forged no element of forgery has been proved”.

Particulars of Error in Law:

(a) The Judges have no duty to make a case different from that placed before the tribunal, the holding demonstrated new case made by the tribunal.

(b) The acceptance of the respondent’s (sic) evidence as the truth was in violation of rules for evaluation of evidence and thereby occasioned miscarriage of justice as the evidence was most unreliable and false.

(c) There is sufficient evidence on the record which proved the allegation that the certificate, (sic) exhibits (sic) C & C 1 were evidence of forgery.

  1. The learned Judges of the Election Tribunal erred in law when they held that the issue of the 1st respondents (sic) (i.e. respondent’s) minimum educational qualification was not specifically pleaded by the petitioners when the tribunal had the lines before stated thus (sic) “the petitioners in para. 15 of their petition state that the 1st and 2nd respondents were not qualified to run for the office of the Governor and Deputy Governor respectively at the time of the election…” and thereby came to wrong conclusions on pleadings and the law.
  2. The learned Judges of the Election Tribunal erred in law when they held that the 1st respondent possesses the minimum educational qualification to contest the election when there is common evidence that the 1st respondent had Primary Six Certificate, Diploma Certificates exhibits C and C1 for a training programme of 10 months and a senator of three years all of which fell short of section 318 of the Constitution (sic). (the italics mine).

Particulars of Error in Law:

(a) The Judges are bound by the provision of the Constitution.

(b) There is uncontradicted evidence that exhibits (sic) C and C1 were neither evaluable nor equivalent of West African School Certificate, Grade II Teacher etc., as defined by section 318 of the Constitution.

(c) The conclusion by the tribunal is without evidence and the Judges of Election Tribunal (sic) misunderstood and misinterpreted the provisions of the Constitution.

  1. The learned Judges of the Election Tribunal erred in law when they held thus “it is therefore clear that it is not the respondent that refused to produce the document but rather the petitioners counsel who refused to collect the document” when the document subpoenaed (sic) to be produced was Grade II Teacher Certificate and counsel to the respondents produced statement of result which neither party pleaded, the holding of the court (sic) is perverse and unfortunate.
  2. The learned Judges of the Election Tribunal erred in law when they held among others.

“But in the present case in the petition before us, the basis on which exhibits (sic) H and H1, J & J1 were admitted was on the facts pleaded in the petition and the replies. See paragraphs 15(1) and 16(ii) and (iii) of the 3rd – 12th respondents (sic) reply,” and thereby came to wrong conclusions that the document (sic) exhibit (sic) H and H1, J and J1 were admissible particularly when none of the parties pleaded the documents and the tribunal had been consistent in its ruling (sic) against the petitioners that any documents not specifically pleaded were inadmissible.”

  1. The learned Judges of the Election Tribunal erred in law when they held that the petitioners did not lead evidence to show that the 2nd respondent did not posses (sic) Grade II Teacher Certificate by going to Borno Teacher’s College to investigate whether or not the 2nd respondent went to the school, and thereby wrongly shifted the onus of proof on the petitioners.

Particulars of Error in Law:

(a) There is evidence of PW3 which was neither cross-examined (sic) nor contradicted that the 2nd respondent did not posses (sic) Grade II Teacher (sic) Certificate which he claimed to contest the election.

(b) The respondents were served with subpoenas duces tecum by the tribunal, which ordered them to specifically produce Grade II Teacher (sic) Certificate submitted by the 2nd respondent and none of them could produce any such certificate.

(c) The Judges wrongly placed additional burden of proof on the petitioners when the 2nd respondent refused and failed to give evidence and indeed abandoned his pleadings.

  1. The learned Judges of the Election Tribunal erred in law when they relied on documents allegedly attached to INEC nomination forms when neither the form nor the alleged Borno State Grade II Teacher (sic) Certificate examination statement of result were admissible in law.

Particulars of Error in Law:

(a) Parties are bound by their pleadings none of the parties pleaded statement of result of any school and parties joined issue, specifically, on Teacher (sic) Grade II Certificate.

(b) The documents’ exhibits J and J1 are photocopies of public documents, not in the custody of the petitioners not certified by the issuing authorities and the originals were not tendered at trial.

(c) The decision is perverse as these irrelevant documents were taken into consideration.

  1. The learned Judges of the Election Tribunal misdirected themselves when they held that the 1st and 2nd respondents were qualified to contest the election as Governor and Deputy Governor when they did not posses (sic) the minimum educational qualification as stated by section 318 of the Constitution of the Federal Republic of Nigeria, 1999.

Particulars of Error in Law:

(a) The learned Judges are bound to give effect to provisions of the Constitution and they failed to do in this case (sic).

(b) The learned Judge (sic) relied on evidence which were irrelevant and unfounded in the pleadings.

(c) The evidence admitted and acted upon were inadmissible at law and the court (sic) was bound by decisions of superior court on the character of the evidence.

(d) The Judges refused to advert to relevant laws referred to by the petitioners on the issue of admissible evidence.

  1. The decision is against the weight of evidence.”

The reliefs sought in this court, are:

(i) An order allowing the appeal.

(ii) An order setting aside the judgment of the Election Tribunal.

(iii) An order granting the reliefs claimed in the petition and order fresh election.

In other words, there are now, two (2) and not three (3) subsisting notices of appeal as stated in the brief of the 1st and 2nd respondents. In the two (2) there are twenty one (21) grounds of appeal.

I note that in No. 4.00 of the appellants’ brief at page 8, they have sought leave, to abandon and accordingly abandons the earlier notices of grounds of appeal dated 9th December, 2003, 24th December, 2003 and 5th March, 2004 respectively. Leave is hereby and accordingly granted. The said notices of appeal are hereby struck out.

It seems to me, that there appear to be some confusion/mistake in the numbering of some of the pages of the records including some of those appearing in the “Index of Particulars”.

The parties have filed and exchanged their respective brief of argument in accordance with Order 6 rules (2),(4) and (5) of the Court of Appeal Rules, 2002.

The appellants have formulated four (4) issues for determination, namely,

(1) Whether the Judges of the Election Tribunal correctly determined the issue of allegation of presentation of forged certificates.

(2) Whether the learned Judges of the Election Tribunal were right when they admitted and acted on exhibits H, H1, J & J1 and all the attached documents to H, H1, J and J1.

(3) Whether the Judges of the tribunal were right when they concluded that the 1st respondent possessed minimum educational qualification under sections 177 and 318 of the Constitution of the Federal Republic of Nigeria, 1999.

(4) Whether the Judges of the Election Tribunal were correct when they held that the 2nd respondent possessed the Grade II Teachers Certificate, with which he was cleared to contest and indeed contested the election as Deputy Governor, of the 1st respondent on 10th day of April, 2003.

It is noted by me that issue No.1 is married with or covers grounds 1,2,3,4,5,6, and 9 of the grounds of appeal, while issue No.2, relates to the four(4) grounds contained in the said notice of appeal dated 14th January, 2004 and grounds 13 and 15 of the said notice of appeal dated 12th March, 2004.

Issue No.3 “encapsulates” grounds 7,10,11 and 17 while issue No.4 relates to grounds 12, 14, 15 and 16.

The 1st and 2nd respondents on their part, have formulated four (4) issues for determination, namely,

  1. Whether the learned Judges of the trial tribunal did not correctly determine the issue of allegation of presentation of forged certificates by the 1st respondent by holding that the allegation has criminal connotation.
  2. Whether their Lordships of the trial tribunal were not right having regard to the pleadings to have admitted in evidence and acted on exhibits H, H1, J & J1 when there was no miscarriage of justice by such admission.
  3. Whether the learned Judges of the trial tribunal were not right having regard to the circumstances of this case to have held that the 1st respondent possesses the minimum qualifications to entitle him to contest for the governorship election in Borno State.
  4. Whether the learned Judges of the trial tribunal were not right to have held that the 2nd respondent possesses a Teachers College Certificate that the 3rd respondent used to clear him to contest for the position of Deputy Governor of Borno State (sic).

It is noted also by me, that in the marriage of the above issues, issue No.1 covers grounds 1, 2, 3, 4, 5, 6, 8 and 9 in the notice of appeal filed on 12th March, 2004.

Issue No.2 covers grounds 1, 2, 3 and 4 in the notice of appeal filed on 14th January, 2004.

Issue No.3 is covered by grounds 7, 10, 11 and 17 of the notice of appeal of 12th March, 2004 while issue No.4 is covered by grounds 12, 14, 15 and 16 of the same notice of appeal, of 12th March, 2004.

The 3rd to 12th respondents have formulated also four (4) issues for determination, namely,

  1. Whether the various findings of the tribunal on the issue of presentation of forged certificates were correct in law.
  2. Whether the tribunal was right when it held that issues were not joined on the minimum educational qualification of the 1st respondent, and in any event whether he had the minimum educational qualification to contest the election.
  3. Whether the appellants discharged the burden of proving that the 2nd respondent does not possess minimum educational qualification to contest the election.
  4. Whether having regards (sic) to the state of pleadings, exhibits H, H1, J and J1 with all the attached documents were admissible in law.

It is noted by me, that issue No.1 covers grounds 1 to 9 of the said notice of appeal filed on 12th March, 2004 while issue No.2 covers grounds 10 and 11 of the same notice of appeal as in issue No.1.

Issue No.3 relates to grounds 12, 14, 15 and 16 of the same notice of appeal as in issue Nos. 1 and 2 while issue No.4 relates to only ground 13 of the above notice of appeal and the four (4) grounds of appeal in the notice of appeal filed on the said 14th January, 2004.

I note/observe, that the appellants did not say anything about the notice of appeal dated 6th January, 2004 but filed on 7th January, 2004 – See pages 390 – 393 of the records. Since the appellants did not formulate any issue(s) covered or relating to the two (2) grounds of appeal contained therein, and have neither advanced any argument in respect thereof nor applied to this court to also abandon them, I take it, that the, said notice of appeal, by implication or inference, have been abandoned by them. I hereby deem the same as abandoned.

It is now settled, that a ground of appeal not having any argument proffered to cover it either in the brief or orally, is deemed abandoned. See Alhaji Are & Anor. v. Ipaye & Anor. (1986) 3 NWLR (Pt. 29) 416 at 418 CA; Chukwuogor v. Obuora (1987) 3 NWLR (Pt. 61) 454 at 479; Akinsaya v. Longman (1996) 3 NWLR (Pt. 436) 303; Adepate v. Babatunde (2002) 4 NWLR (Pt. 756) 99 and many others.

This is why, where a ground of appeal is withdrawn or not canvassed in the brief, it is deemed as having been abandoned. See Comptoir Commercial v. Ogun State & Anor. (2002) 9 LLRCN 903 at 920.

It is therefore, surprising to me, as noted by me hereinabove in this judgment, that the learned leading counsel for the 1st and 2nd respondents, stated at page 33 of their brief, that there are (3) three subsisting notices of appeal. In the circumstances, I also hereby and accordingly, strike out the said notice of appeal.

When this appeal came up for hearing on 20th May, 2004, Chief Awomolo, A. S. (SAN) -learned counsel for the appellants, appearing with five (5) other learned counsel, moved one (1) non-contentious application to amend their brief dated 10th May, 2004 and filed on 11th May, 2004. Same was granted. He filed the amended brief of the appellants on the orders of the court, that same day – 24th May, 2004.

In respect of another motion to amend dated 13th May, 2004 and filed on 14th May, 2004, which was contentious, oral arguments of the learned counsel for the parties, were heard by the court.

In a considered ruling delivered by the court on the same day, the said application was refused and the same was dismissed.

Thereafter Ali, Y.O. Esq. (SAN) – learned counsel for the 1st and 2nd respondents, appearing with ten (10) other learned counsel, withdrew their notice of preliminary objection dated 30th April, 2004 and filed on 4th May, 2004. He said it was an error on their part.

Since there was no objection to the withdrawal, the same was accordingly struck out.

Ali, Esq. (SAN), then referred to their notice of preliminary objection which he told the court, was incorporated in their brief of argument filed on 31st March, 2004. He adopted the arguments as contained at pages 30-32 therein.

In respect of the appeal proper, Chief Awomolo (SAN), adopted their said amended brief. He applied to make some additions – i.e. to add the case of Alhaji M. Dikko Yusuf & 2 Ors. v. Chief Olusegun Obasanjo & Ors. – Sc. 193/2003 delivered on 7/5/2004 – case No. 10 is on their list of authorities and relied on page 12 of the said judgment.

Secondly, to add at page 29 thereof, cases Nos. 10, 12, 13 and 14 in the additional authorities.

He then made oral submissions in amplification and/or support of their said brief in respect of the said four (4) issues. He urged the court to allow the appeal. He told the court that they filed the appellants/respondents’ reply brief. I note that same was filed on 15th March, 2004. He adopted the same “in toto”. He referred to cases Nos. 5, 6 and 7 of the additional authorities and urged the court to dismiss or disregard the preliminary objection. He had, while dealing with issue No.2, referred to the case of Hon. Justice Araka v. Hon, Justice Don Egbue (2003) 17 NWLR (Pt.848) 1, (2003) 7 SCNJ 75 at 84 (sic) (it is at p. 114) as regards the purpose of “certification”.

Ali, Esq. (SAN) – the leading counsel for the 1st and 2nd respondents, told the court that the 1st and 2nd respondent’s filed their brief of argument, on 31st March, 2004. He adopted the same.

He again referred to the objections raised at pages 30-32 of the brief and cases Nos. 1 and 2 on the list of additional authorities as regards the way the grounds of appeal are couched. He stated that if the court sustained the objection, then issues 1, 3 and 4 married to all the grounds to which they took the objection, go.

In respect of the appeal proper, he also made oral submissions in support and/or amplification of the said four (4) issues in their brief.

While dealing with the issue of standard of proof in relation to the use of the words “forged documents” by the petitioners/appellants, he referred to the cases of Dr. (Senator) Ukpo v. Mr. Adede & 10 Ors. (2002) 3 NWLR (Pt. 755) 671 at 678 CA. (case No.6 in their list of authorities) and the unreported case of Alliance For Democracy v. Peter Ayodele Fayose & 4 Ors. – suit No. CA/IL/EP/ GOV/1/2004 delivered on 28th April, 2004. Comment: The one copy made available to the court by Mr. Ali (SAN) – vide his letter, is dated 7th May, 2004 – per Nsofor, JCA.

In respect of issue No.4, he referred to the case of Matori v. Bauchi (2004) All FWLR (Pt. 197) 1010 at 1055. He finally urged the court to dismiss the appeal. He informed the court that he had prepared their brief, based on a record sent to him which pagination appears different from the one in court.

Okupe, A.A., Esq. – learned counsel for the 3rd to 12th respondents, appearing with Zanna, W. Esq., told the court that their clients filed their brief of argument on 31st March, 2004. He adopted the same and referred to the supplementary list of authorities filed by them on 19th April, 2004. He urged the court to insert at page 56 last line of their brief., the case of Owena Bank Ltd. v. Etoile Commerciale S.A. (1995) 1 WLR 44; 51 A-C; F-G ((Privy Council) as to allegations of fraud/forgery committed abroad which must first of all, be determined by the foreign court. He made submissions mainly in respect of the allegation of forgery and referred to page 53 of their brief.

As regards evaluation of evidence, he referred to the case of Bayo v. Njidda & 59 Ors. (2004) 8 NWLR (Pt. 876) 544, (2004) FWLR (Pt. 192) 10 at 78 CA to the effect, that a statement of result, satisfied the minimum qualification. He finally urged the court to dismiss the appeal as being unmeritorious.

Chief Awomolo (SAN), told the court that in the reply to the 3rd to 12th respondents’ submissions, they filed a reply brief on 15th April, 2004 and not March as appears on the stamp of this court’s registry. That this is the same position as regards their reply to the submissions in the brief of the 1st and 2nd respondents.

I note that the registry stamp on the two reply briefs for all the respondents, shows 15th March, 2004, but under it, entered in red, is the date of 15th April, 2004.

Chief Awomolo (SAN) again urged the court to allow the appeal. With the end of submissions, judgment was reserved till today.

As can be seen in this judgment, I have reproduced all the twenty one (21) grounds of appeal so that the real issues in controversy may be appreciated. As far as I am concerned, the main issues relate to qualification and non-qualification, admissibility of documents, and evaluation of evidence by the tribunal.

But before going into the main appeal, I will deal with the preliminary objection. The complaint, is that the grounds of appeal are “argumentative, vague, general in terms having no valid particulars subjoined and in many instances, the particulars are distinct complaints and do not support nor bear relationship with the grounds”.

It is submitted that grounds 1, 3, 5, 11, 13, 14 and 16 of the notice of appeal dated 12th March, 2004, are all argumentative and incompetent. That ground 1, 8, 9, 12 and 13, are general in terms and evasive. That the particulars sub-joined to grounds 2, 6, 9, 15 and 16, are not supportable of the grounds and many of the particulars are distinct complaints.

That grounds 7, 8, 10 and 12, have no particulars thereby making the grounds evasive and inchoate.

It is submitted that any ground of appeal that is not in conformity with or filed in breach of the provisions of Order 3 rules 2(2), (3) and (4) of the Court of Appeal Rules, 2002, are invalid and liable to be struck out. That all the said grounds stated above, suffer serious infractions of the said rules of the court.

The case of Amuda v. Alhaji Adelodun (1994) 8 NWLR (Pt. 360) 23, 31 – (it is also reported in (1994) 9 SCNJ 59) – per Adio, JSC, is reproduced wherein, the case of Globe Fishing Industries Ltd. & 4 Ors. v. Chief Coker (1990) 7 NWLR (Pt. 162) 265 (it is also reported in (1990) 11 SCNJ 56), is referred to.

Mr. Ali (SAN) also cited and relied on the case of A.S.R. Co. Ltd. v. (i.e. Ajeokuta Steel Co. Nig. Ltd.) v. O.O. Biosah (it is O.O. Biosah & Co. Nig. Ltd). (1997) 11NWLR (Pt. 527) 145 at 156-157 C.A., paras. G-A – per Salami, JCA and reproduced and therein referring to the case of Honika Sawmill (Nig.) Ltd. v. Mary Okejie (sic) (it is Okojie) Hoff (1994) 2 NWLR (Pt. 326) 252 at 262 (it is also reported in (1994) 2 SCNJ 86).

He also cited and relied on the case of Oge v. Ede (1995) 5 NWLR (Pt. 385) (sic) (it is 385) 564 at 577 and 584 C.A.

It is the submission that based on the various objections raised to the grounds of appeal, the grounds are liable to be struck out and issues formulated on the alleged defective grounds should be struck out.

In his re-action/response to the preliminary objection, it is the submission of Chief Awomolo (SAN), that all the said grounds of appeal, are competent and in compliance with the provisions of Order 3 rules 2(2)(3) & (4) of the said Rules of Court, 2002, and are therefore, valid.

As to what is considered as a ground of appeal being vague, argumentative or general in terms, he cited and relied on the case of CBN & Anor. v. Okojie & 5 Ors. (2002) 8 NWLR (Pt. 768) 48 at 61 (reproduced) (it is also reported in 150 at 156 – per Uwaifo, JSC in his concurring contribution).

It is submitted that all the said grounds, relate to the findings and conclusions of the tribunal which were quoted in extenso and the particulars of identified error, clearly set out. That none of the grounds, is vague or argumentative.

It is further submitted that grounds 1, 3, 5, 11, 13, 14 and 16 also relate to the said findings and conclusions of the tribunal while the particulars merely elucidated and advanced the complaints in the said grounds.

In respect of grounds 7, 8, 10 and 12, it is submitted that they have their particulars fused into them. In other words, that the particulars, are embedded therein. The cases of Peter v. Architect Okoye & Anor. (2002) 3 NWLR (Pt. 755) 529 at 550 C – per Fabiyi, JCA and Chief Nsirim v. Nsirim (1990) 3 NWLR (Pt. 138) 285 at 297 (it is also reported in (1990) 5 SCNJ 174) referring to the case of Atuyeye & Ors. v. Ashamu (1987) 1 NWLR (Pt. 49) 267 at 282, (it is also reported in (1987) 1 SCNJ 72; (1987) 1 SC 333 at 339-347 and (1987) NSCC (Vol. 18 (Pt.1) 117) are cited, relied on and reproduced.

As regards the complaint in respect of grounds 2, 6, 9, 15 and 16, it is submitted that the complaint in ground 2 relates to the finding of the tribunal that the petitioners did not prove the allegation of presentation of forged certificate by the 1st respondent beyond reasonable doubt. That the particulars in that ground, state that the standard of proof is not expected to be beyond every iota of doubt as the tribunal decided.

It is submitted that the complaint in ground 6, relates to the interpretation and application given to the record of the Government of Borno State by the tribunal. That the particulars in the ground, relate to the failure of the tribunal to take into consideration, evidence, which is relevant to the case of the petitioners in the record concerning the certificates.

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That the same argument/submission applies to grounds 9, 15 and 16. That the grounds and particulars were made to meet the manner the judgment was written and the issues determined.

Chief Awomolo (SAN) then submitted that the approach of the respondents to the grounds of appeal, is no longer fashionable. That the courts look at the substance of the ground of appeal, rather than the form. That the courts now aim at doing substantial justice.

He cited and relied on the case of Hambe & Anor. v. Hueze & 2 Ors. (2001) FWLR (Pt. 42) 11 and 12 (it is also reported in (2001) 4 NWLR (Pt. 703) 372 at 385 – 386 and (2001) 2 SCNJ 310, 41-42) according to him, per Ogundare, JSC (of blessed memory) which he reproduced with some very minor typographical spelling errors comment:- The passage credited to the learned Jurist, was lifted by his Lordship, from the judgment/pronouncement of Ayoola, JSC in the case of Alhaji Aderounmu & Anor. v. Olowu (2000) 2 SCNJ 180 190-191 in which he himself, shared the same views.

He therefore, finally submitted that all the grounds of appeal complained about, relate to the decision of the tribunal appealed against and constitute a challenge to the ratio decidend (sic) of the decision of the tribunal. That the respondents are not embarrassed, misled or prejudiced by the nature and manner of the complaints in the grounds of appeal.

For the avoidance of doubt, I will reproduce the provisions of Order 3 rules 2(2), (3) and (4) relied on by the leading and learned Senior Advocate of Nigeria.

“(2) If the grounds of appeal allege misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated”.

“(3) The notice of appeal shall set forth concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively”.

“(4) No ground which is vague or general in terms or which discloses no reasonable ground of appeal shall be permitted, save the general ground that the judgment is against the weight of the evidence, and any ground of appeal or any part thereof which is not permitted under this rule may be struck out by the court of its own motion or on application by the respondent”.

These provisions, in my respectful view, are clear and unambiguous.

They have been pronounced upon or interpreted by this court and by the apex court of the land in many decided authorities including those cited and relied on by both learned counsel for the appellants and the 1st and 2nd respondents, that I need not repeat them here in this judgment. However, for purposes of emphasis, I wish to say and this is settled, that in an appeal, not only must the grounds be supplied, the error must, be particularized. But this need not be so, where or if it – (the error), is patent from the judgment quoted. See Iro Ezera v. Ndukwe (1961) 2 All NLR 564; Adeniji & Anor. v. Disu (1958) SCNLR 408, (1958) 3 FSC 104; Luttre II v. Addcoth (1946)

2 All E.R. 625 C.A. just to mention but a few. See also Atkins Court Forms.

Also settled, is that grounds of appeal not containing the particulars of error or misdirection of the complaint made in them, are defective – see Amadi v. Okoli (1977) 7 SC 57 at 63-64 and The National Investment & Properties Co. Ltd. v. Thompson organization Ltd. & Ors. (1969) NMLR 99. So, such ground or grounds, is/are liable to be struck out. See Nta v. Anigbo (1972) 5 SC 156 at 164 and Osawaru v. Ezeiruka (1978) 6-7 SC 135.

It need be stressed and this is also settled, that it is not sufficient to quote or paraphrase the portion of the judgment in which the error or misdirection is contained. See Okorie & Ors. v. Udom & 3 Ors. (1960) 5 FSC 162 at 164; SCNLR 326.

A perusal of all the said grounds of appeal, show, that all of them, except grounds 7, 8, 10, 12 and 13, contain the particulars of either law or misdirection.

In the first place, I note that the 1st and 2nd respondents, have not called and did not call for further and better particulars if any of the grounds, is not clear or satisfactory to them.

It is now settled; firstly, that a ground of appeal which incorporates the particulars, is good, even when the particulars, are not contained under a separate heading. See Jozebson Ind. Co. v. R. Lauwers Import-Export (1988) 3 NWLR (Pt.83) 429, (1988) 7 SCNJ (Pt. 1) 95 101-102 or R. Lauwers Import-Export v. Jozebson Industries Co. (1988) 3 NWLR (Pt. 83) 429 & 442-443.

Secondly, and as held in the case of Chief Nsirim v. Nsirim (supra) which referred to the case of Atuyeye & Ors. v. Ashamu (supra) it also settled that where a ground of appeal is couched or framed in such a style which incorporates or contains particulars of misdirection or error complained of and their nature, but without setting them out as is usually done under a separate heading, it cannot be said that the appellant failed to supply the particulars and nature of the error or misdirection in such ground/grounds. See also Titus Onuma & Anor. v. Ebenezer Nwokoro & Ors. (1987) 1 NWLR (Pt. 48) 149, (1986) 11 CA (Court of Appeal Report) 34 and recently, Global Transport Oceanico S.A. & Anor. v. Free Enterprises (Nig.) Ltd. (2001) 2 SCNJ 204 at 240, (2001) 5 NWLR (Pt. 706) 426 at 437-438) – per Kalgo, JSC.

Thirdly, as held in the case of CBN v. Okojie & Ors. (supra) per Uwaifo, JSC, citing also -Atuyeye v. Ashamu (supra). “Vagueness of a ground of appeal may arise where it is couched in a manner which does not provide any explicit standard for its being understood, or when what is stated, is so uncertain that it is not susceptible of being understood. It may also be considered vague when the complaint is not defined in relation to the subject or it is not particularized or the particulars are clearly irrelevant”.

On the above authorities, it is my humble and respectful view, that the said grounds 7, 8, 10 and 12 cannot be described as vague by any stretch of imagination.

In respect of the other grounds of appeal complained of, I anchore my stance or view in the case of Aderounmu & Anor. v. Olowu (supra) referred to in the case of Hambe & Anor. v. Hueze (supra) where the Supreme Court – per Ayoola, JSC and referred to by Ogundare, JSC at p. 11 of the FWLR and pages 41-42 of the SCNJ, report and pages 385-386 of the NWLR, inter alia, as follows:

“The rules of our appellate procedure relating to formulation of grounds of appeal are primarily designed to ensure fairness to the other side. The application of such rules should not be reduced to a matter of mere technicality whereby the court will look at the form rather than the substance. The prime purpose of the rules of appellate procedure both in this court and in the Court of Appeal, that the appellant shall file a notice of appeal which shall set forth concisely the grounds which he intends to rely upon on the appeal and; that such grounds should not be vague or general in terms and must disclose a reasonable ground of appeal is to give sufficient notice and information to the other side of the precise nature (not “naturing” as reproduced by Chief Awomolo [SAN] of the complaint of the appellant and consequently of the issues they are likely to arise on the appeal. Any ground that satisfies the purpose should not be struck out notwithstanding that it did not conform to a particular form”. (Italics for emphasis)

In the said case of Alhaji Aderounmu & Anor. v. Olowu (which is also reported in (2000) 4 NWLR (Pt.652) 253 at 272 and at page 198 of the SCNJ report) Ogundare, JSC, had this to say, inter alia, after considering the said rules of the court:

“These provisions spell out what are required of a ground of appeal and the purpose is to ensure that the respondent is not taken by surprise. Once, therefore, a ground of appeal clearly states what the appellant is complaining about and there is compliance with the rules of court, I cannot describe such a ground as bad and therefore incompetent.” (italics mine).

See also Oge v. Ede (supra) at p.577.

I have already noted, that the 1st and 2nd respondents, have not applied to the court for further and better particulars if in fact, any of the grounds and/or particulars, is/are not clear or satisfactory to them. They only applied for further and better particulars of Paragraph 16(1) (v) – (vi) of the petition.

I agree with Chief Awomolo (SAN), that the respondents particularly the 1st and 2nd respondents, have not stated or complained how the said grounds of appeal complained of, have either embarrassed, misled or prejudiced them by the nature and manner of the complaints in any of the said grounds of appeal.

Afterwards, they have formulated issues on all the grounds of appeal and preferred arguments in respect thereof. I will end the consideration of the preliminary objection, by referring to the observation/pronouncement of Oputa, JSC in the case of Bello & 13 Ors. v. Att.-Gen. of Oyo State (1986) 5 NWLR (Pt. 45) 828 at 886.

Said the learned Jurist while dealing on technicality –

“The picture of law and its technical rules triumphant and justice prostrate may, no doubt, have its admirers.

But the spirit of justice does not reside in forms and formalities, or in technicalities, not, in the triumph of the administration of justice to be found in successfully picking one’s way through pitfalls of technicalities”.

(Italics mine)

I will add, or securing victory by a technical knock out.

I therefore, hold with the greatest respect for the learned leading counsel for the 1st and 2nd respondents – Mr. Ali (SAN), that on the authorities, I find no merit in the preliminary objection which fails and it is accordingly dismissed. Now to the merits of the appeal.

Issues Nos. 1 and 3 of the appellants and the 1st and 2nd respondents and 1, 2 and 3 of the 3rd -12th respondents.

A reading of the above issues, will show, and they appear to me, to be the same in substance. The parties have in their respective brief, reproduced the averment of the appellants in paragraph 16(i) of their petition at page 4 of the records. But permit me first to reproduce paragraph 15 thereof in order to bring in proper form or perspective, the issue in controversy.

“15. Your petitioners are challenging the results of the election as declared by the 3rd and 4th respondents on the grounds that:

(i) The 1st respondent and or the 2nd respondent were not qualified to run for the office of Governor and Deputy Governor respectively at the time of the election as they were, at the said time and up till now, under a legal/constitutional incapacity which prevents them from contesting for and holding the office of Governor and Deputy Governor respectively.

(ii) The election was invalid by reason of being fraught with numerous illegalities and corrupt practices and substantial non-compliance with the provisions of the Electoral Act, 2002 (“the Act”) and the rules and regulations laid down for the conduct of the election by the 4th respondent further to the provisions of the Act.

(iii) The 1st and 2nd respondents were not duly elected by a majority of lawful votes cast at the election.

It seems to me and as held by the tribunal at page 37 of its judgment at page 749 of the records, that the appellants, did not lead evidence in support of the averment in Nos. (ii) and (iii) of the said paragraph 15. It stated that “both” – counsel agreed in their respective address, that since there is no evidence adduced in support of the said pleadings, the said paragraphs are deemed as abandoned.

This fact, accounts for the statement of Mr. Okupe in their brief, that the petitioners/appellants, abandoned the substantial part of their pleadings especially, the grounds dealing with irregularities in the conduct of the said election, corrupt practices, rigging, thuggery and over voting during the election, as, according to him, no single evidence were led thereon. So be it.

I will now proceed to reproduce paragraph 16(i) of the appellants’ petition. It reads as follows:

“Your petitioners state that some of the facts on which they shall be relying upon in support of the grounds for challenging the election stated in paragraphs (sic) 11, 12 and 13 above are as follows:

(i) The 1st respondent submitted forged certificates to the Independent National Electoral Commission and the State Security Service.

Particulars of the said certificates are:

(a) A Diploma in Business Studies with English, dated 27th April, 1982 and purportedly issued by a center of Economic & Political Studies in association with the Business language School, London.

(b) A certificate in Export, Shipping, Trade and Transport dated 1st July, 1982 also purportedly issued by the same Center of Economic & Political Studies London”.

The 1st respondent, (using the word of Chief Awomolo (SAN) and Ali, Esq. (SAN) in their respective brief), poignantly in reply in paragraph 3 of the 1st and 2nd respondents at pages 6-7 of the supplementary record of proceedings, pleaded as follows:

“3. The respondents deny the averments contained in paragraph 16 of the petition and states (sic) as follows:

i. The 1st respondents (sic) never submitted forged Certificates to the Independent National Electoral Commission and the State Security Services as all the certificates submitted to the above named bodies are genuine as particularized in paragraph 16(1) (a) and (b) of the petition.

Furthermore, the 1st respondent has a First School Leaving Certificate and (i) a Diploma in Business Studies in English from Centre of Economic and Political Studies London in 1981-1982, and (ii) Diploma in Business Studies English from Centre of Economic and Political Studies London issued on 27th April, 1982. The said certificates were accepted by the 3rd and 4th respondents and in compliance with the 1999 Constitution and the Electoral Act, 2002”.

Now, Chief Awomolo (SAN), has submitted that from the state of the pleadings, both parties, have made it clear, that the allegation of the appellants, is that the Diploma and certificates pleaded are forged and that they were presented by the 1st respondent. (The italics his). That the issue before the Tribunal, was whether the Diploma and Certificate presented by the 1st respondent, were (not was) genuine or forged having regards to two issuing authorities of the Certificate/Diploma.

The learned SAN referred to section 182(1) of the 1999 Constitution – which provides that:

“No person shall be qualified for election to the office of Governor of a State.

(j) if he has presented a forged certificate to the Independent National Electoral Commission”.

He stated that before the hearing of the petition began, at all, the tribunal, on the application of the 1st respondent, ordered that the 1st respondent “caused his witness to give evidence on the makers, making and genuiness of the Diploma and Certificate pleaded by the parties”, by swearing to an affidavit.

That upon the application of the petitioner’s (sic) counsel, the court (sic), extended the right to give evidence by an affidavit, similar to that granted to the 1st respondent, to the petitioner.

That the 1st respondent’s witness Mr. Ian Goatman swore to a 12 paragraphs affidavit to which he attached various documents. He referred to pages 152-171 A of the records.

That the petitioners, in reaction to the affidavit and the documents attached, swore to three (3) “counter-affidavits”. The first, by Mr. William Rotimi Akinyele, as representing the Honourable Minister of Education. “(2)” Alhaji Gubio and Barrister Ochugboju (it is Ojo). He referred to pages 202-414 and 437-453 of the records (spelt record). Comment. Pages 437-441, contain Mr. Ali’s (SAN) opposition to an application for an adjournment, the arguments and on the Bench Ruling. Pages 442-449, contain applications for subpoena Duces Tecum, notice of change of counsel and the grant, while pages 450-459, are arguments in respect of the subpoena for the 1st respondent, to produce some documents named therein.

The learned SAN, then posed the question thus: “how did the election tribunal resolve the issue?

He stated that the learned Judges of the tribunal, dealt with the issue from page 713-825. He reproduced the holding of the tribunal at page 768 of the records and submitted that the intent of the provision of section 182(2) of the Constitution with regards (sic) to presentation of forged certificate, is not to create a criminal offence to which whosoever is alleged to have violated must (sic) (meaning it), must be seen to be standing trial at the election tribunal by inference. That section 182 of the Constitution, created ten (10) grounds of disability (which he enumerated) and stated that a sober consideration of each of them, shows that none of them, constitute (sic) a crime neither is such intended.

I note that in Chief Awomolo’s SAN oral submissions as regards this said section, he submitted that in the interpretation of this section, the tribunal, incorporated the provisions of sections 363 and 366 of the Penal Code particularly, the elements of crime i.e. “fraudulently and dishonestly used as genuine”. He referred to page 768 of the records, according to him, in order to arrive at a meaning which the Constitution, did not envisage nor did not provide for.

It is his submission that if the tribunal did not “incorporated or “implied” the provisions of the Constitution, the decision, should have been different. That the provision, does not import any type of crime although, according to him, the section, provides for ten (10). But that none of them, as he had stated in their brief and as stated hereinabove, talks of crime or importation to its candidates. He submitted that this led to the misapplication by the Tribunal, of the burden of proof.

The learned SAN stated that it is not in dispute and that there is no dispute, that the 1st respondent presented exhibits C and C1. That the issue in dispute, is whether these documents, are forged. That in this respect, a document is forged, if it is raised by a fictitious person or non-existent person. That on the face of exhibits C and C1, there is apparent conflict and inconsistent (sic) (meaning inconsistency).

He submitted that the documents speak for themselves. He referred to paragraph 12 of the affidavit of Mr. Goatman who he described as 1st respondent’s witness and stated that this, clearly demonstrates fiction in the issuing authority. He referred to page 154 of the records i.e. the Memorandum of Association of Quentbridge Schools Ltd. He urged the court to look at the documents and allow this issue.

Reverting to the brief, it is submitted that in resolving the claim of the appellants, they are required to lead evidence to show two (2) things-

(1) That the certificate presented to INEC was forged.

(2) That it was presented by the 1st respondent.

The rest of the arguments under this issue, appear at pages 14 to 25 of the appellants’ brief, as regards the question as to whether there “was commission of crime directly in issue here”. The cases of University of Maiduguri v. Garba (citation/reference not supplied); Medical and Dental Practitioners Disciplinary Tribunal v. Dr. Okonkwo (2001) FWLR (Pt. 44) 542 at 579-580 (it is also reported in (2001) 3 SCNJ 186 and (2001) 7 NWLR (Pt. 711) 206 – per Ayoola, JSC – (reproduced); Sunday Erhabor Uso & Anor. v. Chief F.A. Okotie-Eboh (unreported judgment) of the Supreme Court – FSC: 407/1959 of 15th June, 1961 – per Unsworth, F.J. (reproduced) are cited and relied on in line with the said oral submission.

The Learned (SAN) has also referred to section 21 of the Electoral Act, 2002 and stated that the responsibilities of the commission, with respect to candidates, is minimal. He also stated the provisions of the said section. The case of Alhaji Abdullahi Usman Matori v. Alhaji Aminu Mohammed Dan Bauchi & 2 Ors. (2004) All FWLR (Pt. 197) 1010 at 1044 CA – a decision of this court – per Obadina, JCA, has also been cited and relied on. It is stated that the said case, gave the rationale for disqualification clause in the Constitution (which he reproduced).

Chief Awomolo (SAN) has in great detail, in the brief, gone into the evidence of the appellants’ witnesses, the exhibits, the affidavit of Mr. Goatman, and submitted that the appellants have satisfied the requirements of proof beyond reasonable doubt. That to prove beyond reasonable (sic) means, evidence consistent to prove the ingredients of the allegation.

It is his submission therefore, that the demand by the tribunal for absolute proof, by elimination of all imaginable doubt, is not consistent with the phrase “proof beyond reasonable doubt”. He cited and relied on the case of Bakare v. The State (1987) 1 NWLR (Pt. 52) 579 – per Oputa and Karibi- Whyte, JJSC (which he reproduced) (it is also reported in (1987) 3 SCNJ 1).

He urged the Court to hold that on the quality of the evidence on record, the tribunal ought to have found in favour of the appellants “when all the totality of the evidence is considered on the issue” (the italics his).

The learned SAN, stated that the Hon. Judges of the tribunal, held that the counter-affidavit of the appellants, did not controvert the averments in Mr. Goatman’s affidavit, even when, according to him, it showed that there is no educational institution called Centre of Economic and Political Studies, and even Mr. Goatman’s affidavit, admitted that the center, was a mere examination center, not registered, not recognized and not accredited.

He further stated that there was no evidence by Goatman of the connection of English Language School which was claimed to have issued exhibit C. (The italics his). That “the basis for accepting the affidavit of Mr. Goatman, is unfounded in law and a grave misdirection on the facts”. He submitted that the evidence of the respondents supported the evidence and facts produced by the appellants on the issue and that the tribunal failed, to consider them.

(The italics his).

It is his further submission that on the preponderance of evidence, the appellants have proved their case. That the manner of treating the facts and evidence by the tribunal was perverse. (The italics his). He indicted the tribunal by submitting that the manner of writing the judgment whereby the evidence of the appellants, was first destroyed before considering the evidence of the respondents and accepting them without exception, violates the fundamental rules of fair trial and justice. He cited and relied on the case of Odofin & Ors. v. Mogaji & Ors. (1978) NSCC Vol. II 275 which he reproduced, and the case of Uchendu & Ors. v. Chief Ogboni & Ors. (1999) 5 NWLR (Pt. 603) 337 at 363 (it is also reported in (1999) 4 SCNJ 64) – per Ayoola, JSC (reproduced).

It is submitted that the appellants, suffered irretrievable miscarriage of justice by the manner the Judges of the Tribunal, treated the issues in the judgment. That the 1st respondent, according to him, who had the onus to debunk the allegation, had no – answer to the allegation. That he was subpoened to produce his letter of admission and his passport of overseas travel, as evidence that there was indeed a person who allegedly issued the certificates. That he was not bold enough to produce them because, according to learned counsel, he knew the truth would support the appellants’ case.

The learned SAN, urged the court to exercise its powers under section 16 of the Court of Appeal Act to hold that the 1st respondent, presented exhibits C & C1 to INEC as evidence of educational qualification and that the certificates issued by two different “persons”, who, according to him, do not exist but fictitious at the time they were allegedly issued, were forged.

In reply to the submissions of the 1st and 2nd respondents’ brief in respect of non-qualification of the 1st and 2nd respondents, Chief Awomolo (SAN), referred to page 35 para 5.02 of the said brief and the submission which he reproduced thus:

“It is clear from the above that the central issue in the allegation of non-compliance to contest the election made by the appellants against the 1st respondent, was the allegation of presentation of forged certificates to the 3rd respondent for the 19th April, 2003 governorship election. The question that called for resolution by the trial tribunal was whether or not the 1st respondent presented forged documents to 3rd respondent for the purposes of the election. The question of his not having minimum educational qualification was not in issue on the pleadings.” (Italics supplied for emphasis).

It is then submitted that the above submission, is erroneous, misleading and a departure from the case made in the Tribunal and contained in the decision appealed against. That what the law requires to question an election, is whether the candidate was qualified to contest the election or that “the” (sic) (meaning he) was disqualified. That whether a candidate possessed minimum educational qualification, is a matter of evidence. The learned SAN referred to the averments in paragraphs 15 and 16 of the petition which he reproduced and to the said reply or pleadings of the 1st and 2nd respondents in respect thereof. He again, went into the evidence before the Tribunal.

Chief Awomolo (SAN) in their para. 5.00 at page 12 of the reply brief to the 1st and 2nd respondents titled/headed “prove (sic) (meaning proof) of forgery as required by law”, referred to the submissions of the 1st and 2nd respondents in this regard, and submitted or rather maintained that had the tribunal considered the totality of the evidence on record, it would have held, that exhibits C & C1, were forgeries and that the appellants had proved their case. That the respondents’ failure to rebut or contradict the evidence of forgery shown on the certificates, is fatal to their case.

On “admissibility of public document – photocopies thereby” in para. 6.00 of their said reply brief, it is submitted that INEC’s certification of the photo copies, does not meet the requirements of the provisions of the Evidence Act, INEC not being the maker and not being in any position, to authenticate the origin of the documents. That in this age of computer and electronic magic, the demands of the law of certification by the issuing authority whom (sic) (meaning who) the law presumes to be in possession of the original information, becomes more imperative to prevent another “Toronto” experience of our time.

The learned SAN referred to the case of Ron. Justice E.O. Araka v. The Hon. Justice Don Egbue (2003) 17 NWLR (Pt.848) 1, (2003) 7 SC 75 at 84-85 (it is also reported in (2003) 7 SCNJ 114 at 126 per Niki Tobi, JSC which he reproduced as to the rationale of the law of certification under section 97(2) of the Evidence Act.

He also cited and relied on the case of Isibor v. The State (2002) FWLR (Pt. 98) 843 at 855 (it is also reported in (2002) 2 SCNJ 162 and (2002) 4 NWLR (Pt. 158) 741 – per Uwaifo, JSC which he also reproduced as regards the further amplification on the need for the authentication of a public document from the originating officer.

He posed the question as to whether INEC is competent “to certify the authenticity, the truth and “correctness official the information of contained in the avalanche of document attached to, J and J1” (sic) particularly, when it was not the originator or maker of the said documents.

The learned SAN referred to the evidence that the photocopies of these documents, were submitted to INEC and that it was confirmed under cross-examination, that it was on the basis of the “face value” of the documents, that the 1st and 2nd respondents, were cleared. He again queried the authority of INEC to certify the said documents as being authentic.

Chief Awomolo (SAN) referred to the submission at page 52 para. 6.13 of “the respondents” brief, and submitted that it is hollow and in ignorance of section 91(1)(a)(i) & (b) of the Evidence Act which requires that in any civil proceedings where direct oral evidence or fact, would be admissible, any statement made by a person in a document and tending to establish that fact, shall on production of the original document, be admissible as evidence of that fact, if certain conditions are satisfied.

He stated that this provision, was interpreted by this court in the case of Okafor v. Okpala (1995) 1 NWLR (Pt. 376) 749 757 per Ejiwunmi, JCA (spelt as Ejiwunmi) (as he then was) (which he reproduced). He then submitted that the interpretation given to the provisions of section 111(1) of the Evidence Act by the learned counsel to the respondents is very erroneous. He reproduced the said section.

It is his submission that a community reading of sections 97(i) (a)(ii), (f) (1) (2)(2), 111 (1) and 112 of the Evidence Act, show that the certification of a public document, must be by the public officer from where the original, was issued. That it is only the body like Government Secondary School Barma Borno State and the Borno State Teachers College, that issued the original testimonials and statement of result as evidence of its records that can issue Certified True Copy to any person who may demand for same and also pay the prescribed fee as secondary evidence of the records of the public body.

The learned SAN referred to the submission of his learned brother silk at page 63 para. 8.04 of their brief, and submitted that there is no evidence like Borno Teachers College Grade II Certificate, statement of results of the 2nd respondent. That the appellants, did not tender exhibits M and G through the DW1. He referred to the cross-examination of DW1 at pages 476-481 and pages 506-511 of the record for the cross-examination of DW1 by learned counsel to the appellants. That nowhere is it recorded, that exhibits M and G, were tendered under cross-examination of DW 1.

It is his submission that a statement of result, cannot be equated with a Teachers Grade II Certificate as provided by sections 177 and 182 of the 1999 Constitution. That the issue is that they were not admissible in law and that none of the parties, can waive the requirements of the law.

Chief Awomolo (SAN), then referred to page 49 of the 1st and 2nd respondents’ brief and the submissions thereon to the effect, that it is possible, for a party to a suit, to lead evidence on facts that had not been pleaded and that having regard to Order 25 rule 38 (of what rules, he did not state) that a defendant is entitled to disprove, any allegation in the plaintiffs pleadings that had not been admitted in the statement of defence.

He then submitted, that the above submission is a mute point. That this is because, the said provision, cannot be invoked by the respondents, because, the respondents, did not give evidence during the trial of the petition. That they relied on the evidence of the petitioners.

The learned, SAN, referred to pages 50-51 – particularly, paragraph 6. 10 of the 1st and 2nd respondents’ brief where they invoked the provisions of section 227(1) of the Evidence Act and submitted that the wrongful admission of exhibits H, H1, J and J1, has not led to a miscarriage of justice.

It is then submitted that the admissibility of the said exhibits J, J1, H and H1, led to a grave miscarriage of justice because,

(i) The tribunal relied on the said exhibits to hold that the 1st and 2nd respondents were qualified.

(ii) If the documents had not been admitted, the tribunal would have held that the respondents were not qualified having regard to the provisions of sections 177 and 182 of 1999 Constitution.

(iii) The documents were not admissible at (sic) law and neither the court nor parties can waive the defects.

Indeed section 122 of Evidence Act did not over rule (sic) the mandatory provisions of sections 98 and 111 of Evidence Act.

(iv) The tribunal dismissed the petition of the appellants because it held that same was not proved.

(v) Therefore, the decision of the tribunal led to a miscarriage of justice.

As regards paragraph 5.08 of the 1st and 2nd respondents’ brief contending that there was no challenge to the findings of the tribunal in relation to the holding of the tribunal, that the appellants presented a different case from their pleadings, it is submitted that it cannot be correct that the fundamental findings of the tribunal, were not challenged. That ground 17 of the grounds of appeal at page 840 of the records (not record), (i.e. the omnibus ground), is to the effect that the decision of the tribunal, was against the weight of evidence.

It is further submitted that from the totality of the grounds of appeal, the issues formulated and the brief of the appellants, the appellants, challenged the fundamental grounds on which the judgment of the tribunal, was based. He referred to grounds 3 and 13 at pages 833-834 of the records. That the law is that the appellant, is not obliged to appeal against every sentence in the judgment. That it is sufficient that there is a complaint which encompasses the matter under reference in any of the grounds of appeal.

Concluding, the court is again urged to allow the appeal and a fortiori hold that the decision of the tribunal, led to a miscarriage of justice in view of the “overwhelming evidence of the appellants and their witnesses”.

In dealing with this issue, I have earlier in this judgment, also reproduced the pleading in paragraph 16 of the petition of the appellants also reproduced by the 1st and 2nd respondents in their brief and their reply thereto.

It is submitted on behalf of the 1st and 2nd respondents “with force”, that allegation of forgery, was very central to the case of the appellants against the 1st respondent. Therefore, that the finding of the tribunal on this point, cannot be faulted. The said finding of the tribunal reproduced in the said brief, is at page 768 (not Pt. 791) of the records as stated in the said brief.

It is further submitted, that not only that the allegation of presentation of forged documents, fall under the provisions of sections 363 ad 366 of the Penal Code, as rightly found by the tribunal at p. 791 (it is at page 768) according to the learned counsel for the 1st and 2nd respondents, that the presentation of forged documents as genuine, is also an offence of uttering. That what is more, is that the provisions of section 115(1)(k) and sub-sections (2) and (3) of the Electoral Act, 2002, are also in point. That shun of all verbiage, the allegation boils down to saying that the 1st respondent, consented, to be a candidate at the election, when he knew, he was not eligible to do so. That this is a criminal offence under section 115(1)(k) of the Electoral Act, 2002.

It is submitted that it is settled now, that one is tempted not to cite authority, that where an allegation of the commission of an offence, is made in any matter, the standard of proof required, is as enjoined in section 138 of the Evidence Act that the sacred position of the law, was recently restated by this court in the case of Ukpo v. Adede & Ors. (supra); (2002) 3 NWLR (Pt 755) 671 at 687 which is also reproduced. Also, the cases of fang & Anor. v. Chief Dariye & 83 Ors. (2003) 15 NWLR (Pt. 843) 436 at 461 paragraphs E-G per Akintan, JCA (as he then was) and Vivian Anazodo v. Esther Audu & 3 Ors. (1999) 4 NWLR (Pt. 600) 530 at 545 and 550 E-F CA, have been cited and relied on.

The leading learned SAN for the 1st and 2nd respondents, has submitted that the appellants, not only failed to lead any credible evidence on the alleged forgery, but also, did not meet the standard presented by the rules of court to even give the Tribunal, the vires to countenance the allegation as presented.

He referred to Order 26 rules (5) and (6) of the Federal High Court Rules which he said, made applicable to the tribunal, by virtue of para. 50 of the First Schedule to the Electoral Act, 2002, mandatorily, provide that where allegation of forgery or fraud, is made in a case, the pleader, has a duty to supply particulars of the allegation. That in this case on appeal, the appellants, failed totally, to supply the particulars of the alleged forgery. That rather, they only supplied particulars of the certificates alleged to be forged. That they had a legal duty, to particularize, the way and manner the 1st respondent, presented alleged forged certificates to the 3rd respondent. That they failed to do this. That on this score alone, the court (sic) would be right not to have entertained the nebulous allegation made in paragraph 16(i) of the petition. That the tribunal was even benevolent in that it went, as it were, out of its way, to consider the point. He referred once again, to the case of Ukpo v. Adede (supra) this time, at page 689 E-F which he also reproduced. He also referred to and reproduced, the views of the tribunal of the matter, at page 795 (it is at page 772) of the records.

See also  Mohammadu Baraya V. Hajiya Biba Belel & Anor (1998) LLJR-CA

It is submitted, that there is no appeal against this finding which, according to the learned SAN, is deemed correct. That having not appealed against the above, nor argue it in their brief, then the rest of the argument on issue No. 1 as presented by the appellants, is pure “brutum fulmen” -(meaning an empty noise or threat – i.e. something ineffectual).

It is further submitted that the learned trial Judges, admirably, at page 796-798 of the records (it is at pages 772-774), took the point that the case of the appellants as presented, was different from their pleadings. That the appellants did not challenge these fundamental findings of the tribunal. The learned SAN cited and relied on the case of Egbe v. Alhaji & 2 Ors. (1990) 1 NWLR (Pt. 128) 546 at 590 (it is also reported in (1990) 3 SCNJ 41). Comment: With respect, I see no relevance of this case to the above submission. He also cited and relied on the case of Dapub (sic) (it is Dabup) v. Kolo (1993) 9 NWLR (Pt. 317) 254 at 269. (it is also reported in (1993) 12 SCNJ 1).

Mr. Ali (SAN) stated that the tribunal ex abundati (sic) (it is abundant) cautela from pages 798-820 took very keen view of the evidence, and came to the conclusion that even if the evidence led, is said not to be outside the pleadings of the appellants, they still failed on a close scrutiny of the evidence led, to prove that the 1st respondent, submitted forged certificates to the 3rd respondent. The learned SAN, commended what he described as “the very thorough and painstaking findings recorded in the above stated pages of the records by the tribunal”, to this court.

The learned SAN, referred to para. 7.01 of the appellants’ brief of argument where he stated that his learned senior counsel, sought to put “some strained interpretation” on the provisions of section 182(1)(j) of the Constitution. He pointed out what was the correct reference and not section 182(2) relied on by Chief Awomolo (SAN).

He submitted that the Constitution, will not create nor punish criminal offences. That rather, where any provision in the Constitution has criminal elements, one falls back to the existing Penal Statutes like the Penal Code. He referred to section 315 of the Constitution.

It is his further submission, that it cannot be doubted that a person that presents a forged certificate to INEC, not only stands the risk of disqualification, he can also be proceeded against, under the Penal laws for the infraction of those laws. Therefore, where it is alleged that a person presents forged certificates to INEC, it is clearly an imputation of crime that must be proved beyond reasonable doubt.

That to put this matter beyond argument, the Constitution provides a lot of prohibition (sic) (meaning prohibitions) in Part 1 of the First Schedule of the Constitution on the Code of Conduct for Public Officers. That it cannot be doubted that if a public officer runs foul of any of the prohibitions, the Constitution, has not provided criminal sanctions, but that there are other laws like the JCPC Act that will be invoked to deal with the erring public officer.

The learned SAN posed this question – i.e. Can one then say that an allegation of taking bribe prohibited in paragraphs 6, 8 and 9 of the First Schedule of the Constitution, would have to be proved on a preponderance of Evidence?

I note that he did not answer the poser/question. He however, submitted that from the foregoing, the extensive submissions, made in paragraphs 7.03, 7.04 and 7.05 of the appellants’ brief, cannot stand the test of time.

He stated that the tribunal found expressly, that commission of crime of forgery, was directly in issue and that it treated the case as such. That the submissions in paras 7.06, 7.07 and 7.08 of the appellant’s (sic) brief, with all the authorities cited, are not germane to the consideration of this issue.

Mr. Ali (SAN) referred again to para. 7.07 where it was stated that “whoever forged the documents are not before the court”. That the question is, who ought to bring the person(s) to the tribunal?

That the logical answer, is the appellants and that they failed in that respect.

He also referred to para. 7.09 of the appellants’ brief (spelt again as appellants brief) and stated that a new case was being sent up. (sic) (meaning set up) on appeal.

The learned SAN stated that in para. 7.10 of the appellants (sic) (meaning appellants’ brief) it was stated that “Is it a coincidence that of all the hundreds of schools listed in evidence of PW2 it is only the 1st respondent school (sic) (respondent’s school) that never existed as an educational institution?” He submitted that there was no where in the record (sic) (records) where PW2 listed any school not to talk of hundreds as misrepresented in the appellants (sic) brief.

On the issue of contradictions, it is submitted that the contradictions in the testimonies of the appellants’ witnesses as extensively highlighted in the judgment of the tribunal especially at the said pages 798-820 of the record, (sic) are unassailable. That it is clear from the drift of the judgment of the Tribunal, that the testimonies of PW1, PW2, PW3 and PW4, were found worthless and rightly rejected.

As regards what the learned SAN described as the veiled allegations of bias made against the learned trial Judges of the tribunal in paragraph 7.12 of the appellants’ briefs, he submitted that it is not only unfounded but unfortunate. That the content of exhibit J quoted in that paragraph of the appellants’ brief, is clear. That the document, did not say that the schools did not exist. That it only states that the institution, was not recognized by the government. That there is a world of difference between a non-existent School and a School that is not recognized by the government.

Ali, Esq. (SAN) referred to the submissions in paragraphs 7.14 and 7.15 of the appellants’ brief on the testimony of PW4 and submitted that they are not candid and not borne out by the records. That the PW4, lied unabashedly at the trial, and that the tribunal found serious contradictions in his testimony.

He referred to the dictum of Pats-Acholonu, JSC in the case of C & C Construction Co. Ltd. & Anor. v. Okhai (2003) 18 NWLR (Pt. 851) 79 at 100 which he reproduced. (it is also reported in (2003) 12 SCNJ 33).

In answer to the submissions in paragraph 7.15 of the appellants’ brief, it is submitted that there is no where, that the tribunal, demanded a higher standard of proof over and above proof beyond reasonable doubt in its judgment. That it did not ask for absolute certainty or any other such fanciful epithets. That the cases cited in the appellants’ brief in the said paragraphs, are clearly cited out of con.

In respect of the submissions in paragraphs 7 – 16, 7.17 and 7.18 of the appellants’ brief, the learned SAN, states that they clearly beg the issue in this matter. That the tribunal, having, according to him, rightly disbelieved the witnesses for the appellants, it cannot be said that they even proved their weighty criminal allegations, on a preponderance of evidence.

That it is settled that a testimony that is disbelieved, cannot be the basis of the success of a plaintiff or defendant in a case. That in the same vein, a court has a duty to disbelieve a witness that has been shown to be lying or who has been successfully assailed under cross-examination, like the witnesses for the appellants in this case.

He cited and relied on the cases of Incar Nigeria Plc & Anor. v. Bolex Enterprises (Nig.) (2001) 12NWLR (Pt. 728) 646 at 668 (it is also reported in (2001) 5 SCNJ. 460) and Olumide & 2 Ors. V. Dr. Ajayi (1997) 8 NWLR (Pt. 517) 433 at 443,444 CA.

As regards the submission in paragraph 7.19 of the appellants’ brief it is submitted that they are totally erroneous. That the appellants, having not succeeded in making a prima facie case, there was no duty on the 1st respondents, to dislodge a non-existent case. That at the trial, parties did not join issue on the traveling documents of the 1st respondent. That it was therefore, not out of question and it was a patent abuse of procedural rules to have even asked the 1st respondent, to produce his traveling papers as the appellants attempted to do at the trial. That at any rate, the Tribunal, according to him, rightly thrashed this issue at pages 818 – 819 of the records. He urged the court to endorse the same.

The learned SAN, finally prayed the court to hold that the allegation of forgery was central to the case of the appellants and that they failed woefully to discharge the burden of proof cast on them by law either beyond reasonable doubt or even on balance of probabilities. That this issue should be resolved against the appellants.

Mr. Okupe’s arguments in their brief in respect of this issue No.1, covers from page 5 to page 27 of their brief, which are substantially, the reply to the controversy highlighted in the appellants’ brief. He referred to the decision in the case of Matori v. Bauchi (supra). He also referred to the case of Aja Wakil Eli v. Zanna Musa Ajid, Appeal No. CA/J/172/2003 delivered on 10th November, 2003 to the effect, that an allegation that a candidate presented forged certificate to contest an election, is a serious criminal allegation that must be proved beyond reasonable doubt. That the above case, is similar to the present case on appeal.

He referred to paragraph 9 of the petition which he reproduced. He referred to page 11 of the above judgment with regard to the nature of the allegation and reproduced the pronouncement of Mukhtar, JCA. He stated that the tribunal, was bound to follow the above authority not only as a decision of a superior court of record and for the better reason that it represents the true and law.

He submitted that the tribunal was on a firm ground when it held that the standard of proof was beyond reasonable doubt. He cited and relied on the cases of Anazodo v. Audu (supra); Omoboriowo v. Ajasin (1984) 1 SCNLR 108; Nwobodo v. Onoh (1984) 1 SCNLR (he didn’t insert the page but it is at page 1); and Owoade v. Sekoni (1998) 9 NWLR (Pt.565) 281.

He also cited and relied on the case of Ukpo v. Adede (supra) part of the decision, he also reproduced. He therefore, submitted that the appellants who alleged that the 1st respondent presented forged document, must as a matter of necessity, give full particulars of the forgery, and also lead evidence in proof of the allegation.

Learned counsel referred to Order 26 rules 5 and 6 of the Rules of the Federal High Court applicable to the tribunal by virtue of the provisions of paragraph 50 of the First Schedule to the Electoral Act which he reproduced. He cited and relied on the case of Yar’Adua v. Barda (1992) 3 NWLR (Pt.231) 638 at 656 – per Akanbi, JCA (as he then was) and which he reproduced as to the essence of supplying particulars in pleadings.

He also cited and relied on the case of Chief Egolum v. Chief Obasanjo & Ors. (1999) 7 NWLR (Pt. 611) 355 at 392 (it is also reported in (1999) 5 SCNJ 92) – per Uwais, CJN which he also reproduced and submitted that the appellants, only gave particulars of the certificate, but failed to give particulars of the forgery as required by the above authorities. That the effect of their default, is to render the evidence adduced thereon, inadmissible in law.

He also referred to page 17 paragraph 7.08 of the appellants’ brief which he reproduced and their submission that the evidence led by the appellants’ witnesses, were admissible in law. He submitted that the evidence of PW1, PW2, PW3 and PW4 as to the non-existence, non-accreditation and non-approval of the School that issued exhibits C and C1 were inadmissible, as according to him, they are not supported by the facts pleaded.

It is Mr. Okpe’s submission, that while it is correct to state that parties are not to plead evidence, it is also a correct principle of the rule of pleadings, that where a party is confused as to what constitutes a fact and evidence, abundance of caution, requires that he should go ahead and plead what may appear to be evidence in order not to spring surprises on his adversary. He cited and relied on the case of Odogwu v. Odogwu (1990) 4 NWLR (Pt. 143) 224 at 233 (sic) (it is at page 224 at 234) paragraphs E – F – per Akpata, JCA which he reproduced.

He submitted that apart from the bare allegation that 1st respondent submitted forged certificate to INEC for the purpose of contesting the election, no where in the pleadings, did the appellants, plead any facts relating to:

(a) The history of accredited and unaccredited Schools in England.

(b) The existence or otherwise of Centre of Economic and political Studies.

(c) Recognition or otherwise of the School that issued exhibits (sic) C and C1.

It is his submission that these were the material facts on which the four (4) witnesses for the plaintiffs (sic) (meaning petitioners), led evidence in an effort to prove the allegation of presentation of forged document, (sic) (documents). That the pleadings of the appellants on this issue, is not sufficient, comprehensive and accurate as required by the Supreme Court on (sic) the case of Egolum (sic) v. Obasanjo at page 392 (supra).

He submitted that the effect of all these, is that the evidence of PW1 relating to the history of accredited and unaccredited schools or institutions in England, goes to no issue, and that it did not go to prove the allegation that exhibits C and C1, were forged.

Learned counsel referred to the evidence of PW2 which he stated that in summary, was on the issue of evaluation and accreditation of foreign qualifications and determination of their Nigerian equivalence and job placement in the Civil Service of the Federation and so on/forth, were equally not based on any pleaded facts before the tribunal.

He also referred to the evidence of the PW3 and that of the PW4 and in particular his (i.e. PW4’s) evidence that “Centre of Economic and Political Studies, does not exist, never existed and perhaps may never exist”, were based on facts not pleaded.

It is submission that the effect of these, is as stated in a of authorities to the effect, that evidence which is not based on facts pleaded, or evidence which is at variance with the facts pleaded, goes to no issue. He cited and relied on the cases of Mrs. Lydia Thompson & Anor. v. Alhaji Arowolo (2003) 7 NWLR (Pt.818) 163, (2003) 4 SCNJ 20 at 49 – per Ejiwunmi, JSC; Alade v. Olukade (1976) 2 SC 183; Mr. Awara & 2 Ors. v. Mr. Alalibo & 3 Ors. (2002) 18 NWLR (Pt.799) 484, (2002) 12 SCNJ 62 at 79; James v. Mid-Motors (1978) 11-12 SC 31 and Emegokwe v. Okadigbo (1973) 4 SC 113.

Mr. Okupe submitted that the tribunal, was correct in law, when it found that the evidence of PW1, PW2, PW3 and PW4, were at variance with the facts pleaded as regards the issue of presentation of forged document.

It is his further submission that the evidence of these witnesses, were full of material contradictions most especially, as they relate to the existence or otherwise of the school that issued exhibits C and C1 among these witnesses as, according to him, correctly found by the tribunal.

That none of these witnesses, could claim directly that he knew as a fact, that the institution, did not exist. Their sources of information, were not exhaustive or conclusive on the basis of which the tribunal could rely on to hold that exhibits C and C1, were issued by a none (sic) existence institution (sic) and thereby, making the said exhibits to be forged documents.

That these inconsistencies, contradictions and non-conclusiveness of the sources of their information, created doubt in the mind of the court (sic) (tribunal) and that this doubt, must be resolved in favour of the 1st respondent.

That the tribunal was correct, when after reviewing the entire evidence before it, came to the irresistible conclusion, that the appellants did not prove the allegation of presentation of forged document, (sic) (documents) beyond reasonable doubt.

Learned counsel referred to and reproduced the argument in the appellants’ brief at page 19, and submitted that the burden of proof beyond reasonable doubt, is on the appellants who made the allegation and does not shift to the 1st respondent.

Therefore, that for the purpose of proving the allegation of forgery, the appellants, must rely on the strength of the evidence adduced by their witnesses, and not on the evidence adduced by the respondents. He cited and relied on the case of Ayorinde v. Fayoyin (2001) FWLR (Pt.75) 483 at 510.

It is his further submission, that in any event, paragraphs 11 to 15 of Mr. Ian Wilfred (sic) (it is Wilfred) Goatman, finally put the issue of forgery, to rest. He reproduced the said paragraphs. That there is no evidence to contradict the above deposition. That the appellants submitted at pages 18 and 19 of their brief that the maker of the documents – exhibits C and C1, was a mere fiction and that the affidavit of Mr. Goatman, established the falsehood on the face of the document because, the Center of Economic and Political Studies, did not exist.

Learned counsel submitted that it is noteworthy that PW3 deposed to a counter-affidavit and annexed thereto exhibits C and E. That the minutes on it exhibit E, put it beyond any doubt, that the Centre and Economic and Political Studies existed as an institution. That this fact, was known to the Government of Borno State because, they had some of their students in that school as deposed to in paragraph 14 of Mr. Goatman’s affidavit.

He finally submitted that the appellants’ allegation that the institution, did not exist, never existed, were mere fabrications which are baseless and unfounded.

He urged the court to affirm the decision of the tribunal and hold that the appellants woefully failed to prove that the 1st and 2nd respondents, submitted forged certificates for the purpose of contesting the Governorship election.

In the reply brief of the appellants in respect to the said brief of the appellants in respect to the said brief of the 3rd to 12th respondents, Chief Awomolo (SAN) referred to pages 16 paragraph 3.11, 19 paragraph 3.13, pages 24 to 26 and paragraph 3.21, pages 27 to 28 and paragraphs 4.01, 4.05, 4.06, 4.07 and 4.08 and 4.10, 5.03 and pages 44 to 59 of the 3rd to 12th respondents and submitted that the submissions in respect of paragraph 3.11 are erroneous. In respect of paragraph 3.13, he submitted that the said respondents, joined issues with the appellants in relation to the qualification of the 1st and 2nd respondents both in the pleadings and through affidavit evidence.

Also, that the said respondents, did not appeal against the leave granted to the appellants, to respond to the affidavit of Ian Goatman. Therefore, that the respondents, cannot now complain on appeal.

In respect of paragraph 3.21, he stated that it is always convenient, for the respondents to say that the appellants did not plead material facts inspite of the salient issues raised by the appellants in the petition to which they joined issues.

As regards paragraph 4.01, it is submitted that the appellants, sufficiently pleaded the non-qualification of the 1st respondent in view of the certificates which he claimed to have possessed. That exfacie, it can been seen, that the constitutional requirement under section 318 (a) (ii) of the 1999 Constitution, was not met.

The replies to the other paragraphs of the 3rd to 12th respondents, are in effect, in my view, a repetition of the substantial and material submissions made in the appellants’ brief. The learned (SAN) concluded by again urging the court to allow the appeal and to hold that the 1st and 2nd respondents were not qualified to contest the Governorship election of 10th April, 2003, having according to learned SAN, failed to satisfy the relevant provisions of the 1999 Constitution relating to the qualification of candidates for such election.

Now, I agree with Chief Awomolo (SAN), that the issue before the Tribunal, was whether the Diploma and Certificate presented by the 1st respondent, were (not was) genuine or forged. He adds “having regards to two issuing authorities of the certificate/Diploma”

There is no doubt that section 182(1) (j) of the 1999 Constitution provides that:

“No person shall be qualified for election to the office of Governor of a State –

(i) if he has presented a forged certificate to the Independent National Electoral Commission.”

Now, in (a) of the particulars of error in law in respect of ground 1 of the grounds of appeal, the following appear:

“Section 182(i) (f) of the Constitution of the Federal Republic of Nigeria, 1999 specially (perhaps specifically) provides for a disqualification of a “candidate who has presented a forged certificate” (not that he the candidate forged the certificate) as a ground for challenging an election.”

The big question I or one will ask, is, if it is not that he the candidate, forged it/them (i.e. the certificates) who then forged it/them? The second question is, who determines that a certificate presented to INEC by a candidate, is forged? In my respectful view, these again, are the crux of the matter in controversy. Section 182(1)(f), must be read together with section 177(d) of the said Constitution for any meaningful interpretation. A false certificate to me means “of his qualification”.

In the first place, there is no evidence before the Tribunal, that the 1st respondent, forged any of the Certificates or that the issuing authority/authorities, “forged” the very certificates they issued to the 1st respondent.

In this regard, the evidence of the PW3 and especially that of the PW4, particularly under cross-examination, come into focus and are most relevant.

The tribunal, reviewed their evidence which appear at pages 384-387,396 – 402 respectively, at pages 735 – 743 for the PW3 and at pages 421 – 428; 430, 431 and 433, at pages 740 to 742 of the records.

Let me first of all; take the evidence of PW4 who was completely routed under cross-examination. This is a person who was never a member of any Inns of Court in London/Britain, swearing on oath and calling him a Christian, that he is a barrister and solicitor of the Supreme Court of England notwithstanding that he has/had never smelt enrolling in any of the Inns of Court in England.

He agreed under cross-examination by Mr. Ali, (SAN), that in England, the practice is a solicitor or a barrister or a foreign qualified lawyer who can practice as a consultant and that sometimes, such practice, is allowed by further qualification in England.

Said he still under cross-examination, inter alia, at page 429 of the records:

“It is the tradition that Barristers who appear in Supreme Court must robe in England. A practitioner who has not been called in any of the Inns in England cannot appear before the court of record.” (Italics mine)

He completely perjured himself when in his counter-affidavit at page 405 of the records; he averred that he was “practicing in the United Kingdom.”

After bluffing in his evidence-in-chief, under cross-examination, he swore at page 430, inter alia:

“…From my inquiries, I confirmed that Quentbridge Schools Ltd. was at a time a Ltd. Liability Company in England. I also confirmed that sometimes in 1965 the name was changed to Study Units Ltd. I also confirmed that in 1969 the name was changed to International Education Centres Ltd…”

In other words, he confirmed substantially, the averments in paragraphs 8,9, 10 and 11 of the affidavit of Mr. Goatman. That is to say, that the said Institute said to be non existent, exists. He swore to this fact, in paragraph 4 of his said counter-affidavit.

This witness, who in his evidence in-chief, stated that the 1st appellant was his colleague at ABUZ aria and is presently, his client, swore at pages 430-431, that he does not know the number of private Polytechnics in England as at the time he was testifying and that he does not know the number of private and public Universities they have in England also at the time he was testifying.

Said he at page 431, inter alia:

“… I attended Borno College of Basic Studies. I was together with the 1st respondent and the 1st petitioner between 1979 – 1981 when I was there. At BOCOBS I studied A level”.

At page 433 of the records, he testified on oath, still under cross-examination, inter alia:

“BOCOBS is a post – secondary Institution for ‘A’ level and remedial O’ level which the 1st respondent was doing.”

When he was given exhibit AK 7 paragraph P.6 i.e. the counter affidavit of Mr. Akinyele to read, he testified that from the exhibit, the Ministry of Education, is saying that the list of existing private Universities in UK. is not exhaustive. He also testified at page 432 of the records, that the Federal Ministry of Education, also agree that there are private institutions in UK. (United Kingdom). He also agreed also that NARIC – is an advisory body and that it only offers guidance on the likely recognition to be given to certificates.

He also agreed that NARIC has no right to make authoritative statements or to give assurances which would challenge the right of individual institutions to make their own judgment.

The point I am making, is that firstly, although the issue of minimum qualification of the 1st respondent, was no longer an issue in the tribunal, by/from the evidence of this witness – PW4 hereinabove stated, the 1st respondent attended a post-secondary Institution for “A” level and remedial ‘O’ level which he was doing.

So, by virtue of section 177(d) of the 1999 Constitution, he had possessed the minimum qualification to entitle him to contest as a Governor of his State. As a matter of fact, under re-examination, he stated that the object of a company, may empower it to set up schools.

Secondly, going by the stance of Chief Awomolo (SAN) in paragraph (d) of their particulars of error in law under ground 1 (one) of the grounds of appeal, by the evidence of the PW4 under cross-examination, the standard of proof, on the balance of probability, was in favour of the 1st respondent that their exist or existed, such a School or an Institution where the certificates in question, were or could be awarded.

There is no wonder or surprise that the tribunal at page 791 of the records, exposed the unreliability of PW4 as a witness, his contradictions and perhaps, quibbling. This witness, roundedly/vehemently, perjured himself in paragraphs 6, 8 and 11 of his said counter-affidavit.

Perhaps, may be, it is the realization that the PW4 and PW3 destroyed the case of the appellants, that Chief Awomolo (SAN), had to resort or resorted to the Alternative grounds of appeal – grounds 2 to 16 which I have reproduced hereinabove in this judgment.

The settled law, is that a plaintiff/petitioner, must rely on the strength of his own case. Where the case of the plaintiff/petitioner, supports that of the defence, of course, that is the end of the plaintiffs/petitioner’s case as has happened in the petition leading to this appeal. The 1st and 2nd respondents, rightly and wisely, in my view, did not call oral evidence and rested their case on that of the appellants, more especially, after the evidence of the PW3 and PW4.

Now, as regards the evidence of the PW3 – a Rtd (but not tired) Police Officer an Acting Asst. Commissioner of Police and who is the Chairman of the 3rd appellant, he swore on the Holy Quaran that he was not satisfied with the result of the election because, according to him, the 1st respondent is not qualified to contest the election. That the 1st respondent presented forged certificates to INEC because, again according to him, the certificates (i.e. exhibits C and C1), are not from a recognized Institution.

Although I note, that he testified under cross-examination at page 402 of the records, that he had West African School Certificate in 1961, he was a Commissioner for Education in the Borno State Government.

He swore that he did not know of the center, but there were certificates which were rejected by the Ministry from similar Institutions, because, they did not conform to the educational standard recognized by the Government of Borno State. He also testified, that through his investigation, he discovered that some citizens of Barno State who claimed to have attended such school, could not produce genuine certificates recognized by Borno State. So, the 1st respondent was not alone or the only person who produced such a certificate. The only thing, is that those certificates were not recognized by the Borno State Government or Ministry of Education. Not that the said certificates, were forged.

In spite of this evidence, this witness swore, that the 1st respondent, should be disqualified because he did not possess the required qualification and that the certificates purported to have been issued to him, by the Centre in London, is false as there was no school or college recognized as such to issue Diploma Certificate.

Said he, under cross-examination, inter alia, that the 1st respondent was elected as a Senator but he didn’t know how he was elected. That he is aware that the 1st respondent was in the Senate, before he became the Governor.

He read exhibit C attached to his counter-affidavit and swore, that the minute therein, did not state that the center of Economic and Political Studies did not exist.

He also read exhibit E attached to his said counter-affidavit arid swore that the minute thereon dated 5th May, 1981, and that going by paragraph 3 in the said exhibit, it is apparent that at that time, Borno State Government knew that there were many students in that school. He admitted that by paragraph 1 of exhibit J attached to his said counter-affidavit, it is apparent that at the time he wrote the letter, the petitioners had already gone to the Tribunal. That part of the request in the said letter, was to strengthen their case in the tribunal.

He confessed that going by paragraph 2 of the exhibit K attached to his said affidavit, the National Security Adviser to the President, requested them – (i.e. himself and the 3rd appellant), for further information as to the location and address of the institution(s). But that after the receipt of exhibit K, he did not send the address but that he continued with his search. Perhaps, he is still searching.

PW3, admitted that since December, 2003, he had/has not visited London and that he has/had never been to the Companies Registry in London.

However, he admitted that he was not at any time, present when INEC was screening the candidates and that he was never a Principal in Borno Teachers’ College.

The PW1, as rightly found as a fact by the tribunal, contradicted himself he stated the alleged non-existence of the schools. But under cross-examination, he swore that they exist. See pages 357, 359 and 360 of the Records.

The evidence of DW1 – the Chief Legal Officer of the 3rd respondent, is also pertinent. The important fact, is that he identified Forms CF001 and CF002 which were tendered and admitted in evidence as exhibits J and J1. He had also identified exhibits Hand H1. He stated that these exhibits were displayed for public scrutiny at the 3rd respondent’s office in Maiduguri. That thereafter, the screening committee of the 3rd respondent of which he is a member, the committee, verified the claims of the candidates. He said that based on the committee’s recommendations, the 1st and 2nd petitioners/appellants, as well as the 1st and 2nd respondents, were qualified and that they were cleared to contest the election.

He identified exhibit E as the declaration of result, made by the Returning Officer. That there was no protest against any of the candidates that contested the election. He said that the general requirement of the law, is the minimum educational qualification of a school certificate or its equivalent.

Under cross-examination, he confirmed the said screening of all the candidates for the April, 2003 election. That the 3rd respondent, took custody of all the documents submitted by the candidates and that the candidates, were found eligible to contest the election and so they contested.

He said that the screening committee, perused the forms and documents attached. He swore that when foreign certificates are presented before the 3rd respondent, except where there are complaints, the 3rd respondent accept the foreign certificates and Diploma on the face of it.

He testified that the 3rd respondent, has no means of verifying certificate submitted by candidates because, it is not an investigating body. That the National Security Adviser to the President, does not advise the 3rd respondent. That INEC accepted exhibits C and C1 which were presented to it by the 1st respondent to substantiate his claim of educational qualification.

That in exhibit J the educational qualification fort he 2nd respondent, is Grade II Teachers’ College. That as a member of the Screening Committee, they did not receive any objection as to the qualification of the 1st and 2nd respondents and that no suit was instituted against the 3rd respondent, regarding the clearance of the 1st and 2nd respondents.

I have taken the pains to perhaps, summarize, the salient or material evidence of the witnesses at the tribunal, because, as now settled, an appeal, is in the nature of re-hearing – See Sabru Motors (Nig.) Ltd. v. Rajab Enterprises Nig. Ltd. (2002) 4 SCNJ 370 at 382; (2002) 7 NWLR (Pt. 766) 243 at 260.

To say the least, as found by the tribunal and as stated by Mr. Ali, (SAN), the PW4, lied on oath unashamedly/unabashedly. Here is a man who belongs to the honourable legal profession, appearing before a tribunal manned by learned Judges, only to disgrace the legal profession and ridicule himself in the witness box where, undoubtedly, he must have looked a sorry sight under cross-examination.

Perhaps, I will refer with respect, to the apt pronouncement or declaration of his Lordship, Pats-Acholonu, JSC in the case of C & C Construction Co. Ltd. v. Okhai (supra). Said he, inter alia:

“To my mind, when the testimony of a witness has reached or attained the height of insipid or important exaggerations, it should be disregarded as mere petulance and treated with ignominy.” (Italics mine).

I will pause here and deal with one more point that I consider relevant to the issue in controversy.

From the submission of Chief Awomolo (SAN), that the Tribunal, ordered that the 1st respondent, cause his witness to give evidence on the makers, making and genuiness of the Diploma and Certificate pleaded by the parties by swearing to an affidavit and that the tribunal also, extended the right to give evidence by an affidavit similar to that granted to the 1st respondent, to the appellants, stricto sensu, can it be rightly said as appears to be the stance of the appellants and their learned counsel, that the 1st respondent, offered no evidence, to controvert/counter, the allegation or evidence of the appellants? I think not. As I had stated hereinabove in this judgment, that Chief Awomolo (SAN), described Mr. Goatman, “as the 1st respondent’s witness”.

Surely, in my humble opinion, the affidavit of Goatman and the counter-affidavits of the PW2 – Akinyele Rotimi Williams and PW3 – Alhaji Ibrahim Abba Gubio, constituted affidavit evidence that were before the tribunal and are part of the record of proceedings in this case/matter. I so hold. The tribunal was entitled to look at the said affidavit and make use of them. See West African Provincial Ins. Co. Ltd. v. Nigeria Tobacco Co. Ltd. (1987) 2 NWLR (Pt. 56) 299 at 308; Nwanosike v. Udosen (1993) 4 NWLR (Pt.290) 684 at 693 C.A.; Agbaisi v. Ebikorefe (1997) 4 NWLR (Pt.502) 630, (1997) SCNJ 149 at 160; Agbahomovo & Ors. v. Eduyegbe & Ors. (1999) 3 NWLR (Pt. 594) 170; (1999) 2 SCNJ 9 and recently; Alhaji Nuhu v. Alhaji Ogele (2003) 18 NWLR (Pt.852) 251, (2003) 12 SCNJ 158 at 178 – per Edozie, JSC.

Incidentally, in Chief Awomolo’s (SAN) submission, he urged or rather, invited the court to look at the documents. I have done so. He had in fact in their brief, stated that the evidence of the respondents, supported the evidence and facts produced by the appellants on the issue and that the tribunal, failed to consider them.

See also  Captain Hon. Otiki & Anor V. Alh. Momoh Bajehson (2005) LLJR-CA

Again, as rightly stated by the tribunal, at page 811 of the records, and this is also settled that there is no rule of law or practice which requires a plaintiff or defendant in a civil suit to even be physically present in court or to testify if he can otherwise, prove his case. See Kehinde v. Ogunbunmi (1967) IANLR 360,369; (1968) NMLR 37 and British and French Bank Ltd. v. Solel-El-Assad (1967) NMLR 40; just to mention but a few.

A plaintiff or defendant, can also prove his case through one (1) witness without he himself, going into the witness box. See Cross-River State Newspapers Corporation v. Oni & Ors. (1995) 1NWLR (Pt. 371) 270 at 293; SCNJ 218 at 239-240 and Alhaji Lawal v. Union Bank of (Nig.) Plc. & 2 Ors. (1995) 2 NWLR (Pt.378) 407, (1995) 2 SCNJ 132 at 147 and many others.

I want to say straightaway, with all the humility in me and with profound respect, that these issues pose no difficulty to me inspite of/notwithstanding the lengthy submissions of the learned counsel for all the parties including some semantics, which I have deliberately, reproduced almost verbatim herein in this judgment.

In my respectful view, as I had stated earlier in this judgment, the central and fundamental issue in this appeal, is whether or not, the appellants, succeeded in proving their allegation that the 1st respondent knowingly, presented forged documents to the 3rd respondent – INEC and perhaps, whether he possessed minimum educational qualification under the Constitution.

In Black’s Law Dictionary 7th Edition, forgery is defined as the act of fraudulently making a false document or altering a real one to be used as if genuine. The following appear in this definition:

“While it is true that there is a distinction between fraud and forgery, and forgery contains some elements that are not included in fraud, forgeries are a species of fraud.

In essence, the crime of forgery involves the making, altering, or completing of an instrument by someone other than the ostensible maker or drawer or agent of the ostensible maker or drawer. 37 C.J.S. Forgery 2, at 66 (1997)”. (Italics mine).

It goes beyond speculation, and/or semantics, to say that to accuse or allege that a person or persons, forged or presented a forged document, is a crime or a criminal offence.

In fact, after reading the record of proceedings and ground 1 of the grounds of appeal and the arguments proferred under them, I had the impression, that the appellants and their learned counsel, mayor were perhaps “fishing” especially when it was stated that grounds 2 to 17 of the grounds of appeal filed on 12th March, 2004 are in the alternative.

Surely, “fishing” (not in troubled waters) either by an ordinary folk or professionals like Peter and his colleagues in the Holy Bible, is bound to result in the fisherman, getting whatever that comes on either in the “hook” or net or on board so to speak. It may be an electric fish, weed, mangled ropes etc., or a living edible good fish. There again, is the notice and grounds of appeal filed on 14th January, 2004, particularly ground 3 thereof which appear very amusing to me.

I suppose that the taking of the first wrong step by the appellants, started with the couching or framing of what is/was their grouse or complaint. But their case, is predicated on the said paragraph 16(1) of the petition which was reproduced by all the parties in this appeal in their respective briefs.

I have no doubt in my mind, that the allegation of the appellants against the 1st respondent, was/is an accusation of the committal of a criminal offence and I so hold. I endorse as correct and well founded, the finding and holding by the tribunal as even reproduced by the learned counsel for the appellants under ground 1 of the grounds of appeal, thus:

“There is therefore no doubt that the allegation against a party that he submitted forged certificate is a criminal allegation going by the definition of forgery in section 363 of the Penal Code and the punishment for using forged document, in section 366 of the same Code, so also the case of Ukpo v. Adede (2002) 3 NWLR (Pt. 755) 671. The allegation in para. 16(1) of the petitioners’ petition against the 1st respondent is a criminal allegation. Now what is the position of the law with regards to standard of proof required to discharge the burden in a criminal allegation? Section 138 of the Evidence Act”.

It must be noted, that the case of Ukpo v. Adede (supra), which is also reported in (2002) 3 NWLR (Pt.755) 671, (2001) FWLR (Pt. 77) 850 at 864 is a decision of this court. I am bound by it. I am not aware, nor has my attention been drawn by any learned counsel, to the fact that the said decision, has been set aside on appeal by the Supreme Court or that there is a contrary view by the apex court in respect of the state of the law ably and admirably enunciated and pronounced upon in the said decision or judgment.

Also in Aja Wakili Eli v. Zanna Musa Agid & Ors. (supra), the respected and respectable presiding Justice and an erudite and eminent Jurist – Mukhtar, JCA, stated that “an allegation of serious nature as forgery must be proved beyond reasonable doubt”. This is now firmly settled law. He also referred to the case of Anazodo (typed as Abazodo) v. Audu (supra).

But for purposes of clarity and emphasis, I or one may ask, were exhibits C and C1, issued by a fictitious or non-existent person, persons, authority or institution?

Now, Mr. Goatman, as even admitted by the appellants in their brief appeared in person before the tribunal. For reasons best known to the appellants and their counsel all the counsel, including Chief Awomolo (SAN), Chief A. Akintola (SAN), Messrs O. Wadzani, M.E. Oru, D.B. Sunama, H.M. Dlakwa, I. Makeri, A. Torti and G. Ibrahim, curiously, decided to be absent in the tribunal. It was only Chief Awomolo (SAN), who wrote for an adjournment on ground of ill health. He even applied for an adjournment to 23rd December, 2003 (i.e. two (2) days to Christmas).

However, on the application of the 1st and 2nd respondents, and for the reasons that appear in the affidavit, the tribunal ordered that Mr. Goatman, gives his evidence by an affidavit and which he did.

The appellants admit in their brief, and as appears at pages 176 and 181 of the records, later applied and their application to file a counter-affidavit in response to the said affidavit of Mr. Goatman, was duly granted. The said counter-affidavit, is at pages 203 and 204 of the records.

I note that the appellants, through their learned counsel, never applied nor did they insist, on Mr. Goatman, giving evidence in the B witness box, so that he would be liable to be cross-examined by them. They contended themselves, in swearing to and filing a counter-affidavit, which turned out not to controvert the various material averments contained in the said affidavit of Mr. Goatman. Why did all the learned counsel for the appellants, decide to be absent in the tribunal when they fully knew, that Mr. Goatman who from all interests and purposes, was a vital witness in relation to the serious allegation of forgery made against the 1st respondent (who he described in paragraph 14 of his said affidavit as “my student”), was around to testify? I or one may ask. Your guess is as good as mine. The appellants and their counsel, knew that Mr. Goatman, was coming to destroy their allegation against the 1st respondent. They chose to call PW4 who, I have in this judgment, dealt with his evidence.

However, happily, I or one may say, Chief Awomolo (SAN) in E his said oral submissions, stated that the documents i.e. exhibits C and C1, speak for themselves. I have read the said affidavit of Mr. Goatman, and I have also looked at, perused/read exhibits B, C and “P” (which are the same thing as exhibits B1, C1 and F1) and are the originals while the others, are the certified true copies. I am satisfied that they were issued not by any fictitious person or authority or institution, but by Mr. Goatman – Director of the said Centre which is a legal entity that existed in fact at the time the said certificates were issued. This fact of existence, was even confirmed on oath by the PW 4 under cross-examination as I had noted or stated hereinabove in this judgment.

I note that in the said affidavit of Mr. Goatman, he swore in paragraphs 13, 14 and 15, uncontroverted in the said counter-affidavit of PW3, as follows:

“13. That I know as a fact that about 1978 I became a Director of the Centre with full authority to admit students and sign their certificates on completion of their studies”.

“14. That I know as a fact that between July, 1981 and June, 1982 Ali Modu Sheriff, the 1st respondent was my student at the centre and he attended the school at about the same time with some other Nigerians like;

(1) Ali Kawu Lawan

(2) Mohammed Sanusi Liman

(3) Abba Jato; and

(4) Mohammed Nur Sheriff’.

  1. That I know as a fact that Ali Modu Sheriff successfully completed his studies having fulfilled all the requirements prescribed for the award of Diploma and Certificate of the center and was awarded a Diploma in Business Studies with English on 27th April, 1982 and Certificate in Export, Shipping, Trade and Transport on 1st July, 1982 and these two certificates were personally signed and authenticated by me as the Director of the Centre”. (Italics mine).

This fact in paragraph 14 of the affidavit of Mr. Goatman, is in fact and indeed, confirmed in one of the documents attached by the PW3 himself to his said counter-affidavit. It is at page 207 of the records.

In my respectful view, that the certificate issued by the centre to Mohammed Sanusi Liman (No.2 student) on 22nd September, 1980, is not a recognized certificate, is beside the issue and it is of no moment. If anything, the existence of such a school, is very well known to the Nigeria Educational Authorities or the Federal Government through its Ministry of Education.

For wrote/minuted W.A. Olasebikan CIE/HE on 5th November, 1981, in reply/reaction to the minute of his ACEO of 7th September, 1981, inter alia, as follows:

“3. In view of the above, and if you have no objection, I may suggest that we immediately write to the Borno State students in that school and other similar institutions to change over to recognized alternatives.

  1. You may further wish to note the responsibility of the Ministry in providing counseling/career guidance services to students generally to enable them obtain better qualifications.”

To the above, the above officer, was directed by his boss, as follows:

“CIE/HE –

Yours above refers I have no objection with your suggestion. Liaise with Scholarship Board the predicament of our students studying in such institutions and communicate in earnest”.

From these instructions, it is even clear or evident, that the students in that School, were on scholarship of the Borno, State Government.

From the above how can anybody and the appellants, with respect, have the guts of saying or even suggesting, that the said exhibits, were forged? One or I may ask. Honestly, this is, or it is most insulting and indeed libelous/defamatory, to say the least.

Afterwards, by the provision of section 177(d) of the 1999 Constitution, the minimum qualification in order to contest for the post of a Governor of a State, is evidence that such a person/candidate,

“(d) has been educated up to at least School Certificate level or its equivalent”.

In other words, passing of School certificate examination or obtaining a School Certificate, is not one of the constitutional requirements, in order to contest for the post of a Governor of a State.

Now, even if it means stretching the matter, and in order to show that the said centre, is not a fake or a fictitious school or institution, I will refer to the Memorandum of Association of the company known as and called Quentbridge School Limited attached to the said affidavit of Mr. Goatman and which is at page 152 of the records. One of the objects, for which the company was established (a)(ii) –

“To carryon either separately or in conjunction with one another all or any of the businesses of a college or school, or colleges or schools and to provide for the instruction and education of pupils in all branches of learning and knowledge and in arts and crafts of all kinds and in science, commerce and journalism and all or any other branches of – knowledge, thought, philosophy or Endeavour …”

The said certificate that the 1st respondent presented to the 3rd respondent, is the res. It is what the school or centre, gave to him and as submitted by Chief Awomolo (SAN), they speak for themselves.

I had asked and one may ask – who determines that the certificates are forged? Did the appellants call any expert to say that the certificates are forged? Did INEC say they are forged? Surely and certainly, it is the law, that he who ever asserts, must prove. See E.D. Tsokwa & Sons Co. Ltd. v. Union Bank of (Nig.) Ltd. (1996) 12 SCNJ 445 at 461-462, (1996) 9 NWLR (Pt. 471) 129 and Chief Lawson & Anor. v. Chief Ajibulu & 2 Ors. (1997) 6 SCNJ 1 at 25; (1997) 6 NWLR (Pt. 507) 14.

The question I am bound to ask is, is it forgery by the issuing authority or the school or by Mr. Goatman? Has the appellants or anybody else, proved that he had no authority – statutorily, legally or otherwise, to issue or sign on behalf of the school? There is no such evidence or proof by the appellants in the records. As I said earlier, that the said school or its certificate, is not one of the recognized ones, in my view, is non-soquitur, a non-issue and clearly of no consequence.

So, in view of the stance of the appellants and their learned counsel, that they are not saying that it was the candidate or the 1st respondent, who forged the said certificates and the alleged or purported forgery, is one of the grounds for challenging the election, as far as I am concerned, all the fuss by the appellants and their learned counsel, are with respect, an exercise in futility.

Comment:- This is just by the way and of no moment as regards this appeal. A reading of List III of (“bogus” Institutions or “Degree Mills” in the U.K., that sell Degrees, Certificates and Diplomas for money after little or no study by correspondence) that appear at pages 284 to 287 of the records – exhibit AK7, although they appear amusing, (they are 109 in number), but it is very worrisome and d1sturbing to me. One of them. is said to be run by “a self styled archbishop of old Catholic Church of England”, some others by Nigerians some of them unemployed, etc. I note however, that the School, one of the subject of the case on appeal, is not listed as one of them.

I wish to pause here and put on record, that it is not the law, that the decision of INEC as to qualification of a candidate to contest an election, is conclusive and cannot be questioned. First, sections 134(1), 136(1) & (2) and 138(1) & (2) of the Electoral Act, 2002, debunk this assertion. As held in the case of Chief Falae v. General Obasanjo & 59 Drs. (1999) 4 NWLR (Pt. 599) 476 at 515 C.A. – per Edozie, JCA (as he then was), the proper time to challenge the question of qualification to contest an election, is after the election. See also the cases of Tsoho & Anor. v. Yahaya & 5 Ors. (1999) 4 NWLR (Pt. 600) 657 at 662, 671, 673 C.A.; Peters v. David & 3 Ors. (1999) 5 NWLR (Pt. 603) 486 at 495-496 CA.; Alhaji Balewa v. Alhaji Muazu & 4 Ors. (1999) 5 NWLR (Pt. 604) 636 at 644-645 CA and Abdullahi v. Alhaji Hashidu (1999) 4 NWLR (Pt. 600) 638 at 644,648 CA – per Nzeako, JCA all of which, I referred to in my concurring contribution/judgment in the case of appeal No. CA/J/153/2003 – Bayo v. Njidda & Anor. Delivered on 2nd December, 2003 and also cited and relied on (supra), by Mr. Okupe in his oral submissions, in respect however, on the issue of standard of proof in criminal allegations. See also Election Law and Practice by Afe Babalola, 2003 at pages 134 to 140.

Secondly, I suppose that the process of election is not complete, until the tribunal gives its decision and it is affirmed by the Court of Appeal where the said election is being contested or it is the subject of litigation.

Thirdly, it is only in section 318(1) of the said Constitution – Interpretation, etc, that School Certificate or its equivalent (c) (i), (ii) and (iii) – Primary Six School Leaving Certificate or its equivalent appear. It is under or in sub – (i), (ii), (iii) and (d) that INEC, has a discretion in the matter – the words used are “acceptable” and “satisfaction”. It has no such discretion in (a) – a Secondary School Certificate or its equivalent, or Grade II Teachers’ Certificate, the City and Guilds Certificate.

If there is any truth in the said assertion, the inherent danger in such a situation, can well be imagined in that some INEC officials, will have a field day to do whatever they like especially in these days when corruption/graft, is the rule instead of the exception. May such a day, never come for now in this country! If that were the case, then the establishment of Election Tribunals under section 285 of the Constitution, 1999 where, in sub-section (f) they have original jurisdiction to hear and determine petitions as to whether –

“(a) Any person has been validly elected as a member of the National Assembly”, should have not been enacted/provided therein.

For other authorities that criminal allegations, must be proved beyond reasonable doubt, See also Keffi v. Isa (1965) NNLR 17; Alhaji Waziri Ibrahim v. Alhaji Shehu Shagari & Ors. (1983) SCNLR 176 at 201; Opia v. Ibru (1992) 3 NWLR (Pt. 231) 658 at 708-709 and Falae v. Obasanjo (1999) 4 NWLR (Pt. 599) 478 and many others.

I think and believe, that since the PW4, perhaps, with his tongue in his cheek, made a u-turn, so to speak, and admitted the existence of the said School, let his conscience, if he has any Judge and battle with him.

I note that there was no subpoena at the instance of the appellants, ever issued to the said School which the PW4 admit exist or to any of its officers/members. Let me repeat, that on the decided authorities too many to mention, including those referred to in this judgment, apart from the fact, as rightly submitted by the learned counsel for the 1st and 2nd respondents in their brief, that there are no appeal against some of the findings of fact of the tribunal, the standard of proof required in an allegations of the commission of a criminal offence like forgery, etc, is beyond reasonable doubt. See also section 138(a) of the Evidence Act. The appellants failed woefully, to attain such standard at the trial. I so hold. The consequence, is that their complaint in respect of issues 1 and 3 of the appellants, completely collapses like a pack of cards. See also the recent judgment – per Nsofor, JCA in the case of Alliance For Democracy v. Fayose & 4 Ors. (supra) at pages 30-33. Although Mr. Okupe is not counsel for the 1st and 2nd respondents, I hereby or herein endorse and accept, his submissions in their brief of argument in respect of their issues Nos. 1, 2 and 3. They not only reflect the position of the law as enunciated/laid down in a string of decided authorities by this court and the apex court of the land, they also relate to all the circumstances of the pleadings and evidence in this case leading to this instant appeal.

I will pause here to state and this is settled, that the documents, including the INEC Forms CF001 and CF002 and exhibits J and J 1 were/are admissible in evidence. This is because, they are the res – the things in their custody and of course, they were all relevant to the issues in controversy. See Ogbuanyiya & 5 Ors. v. Obi Okudo (1979) 6-9 SC 32; (1979) ANLR 105 at 112; Oshurinde v. Akande (1996) 6 NWLR (Pt.455) 383, (1996) 6 SCNJ 193 at 198 at 199-200; Dr. Ufere Torti v. Chief Chris Ukpabi (1984) 1 SC 370 at 412-413; (1984) ANLR 185 at 195 and recently; Gaji & 2 Ors. v. Pave (2003) 5 SCNJ 20 at 41; (2003) 8 NWLR (Pt. 823) 583 just to mention but a few.

Again, it must always be borne in mind, and this is also settled, that documentary evidence, needs not to be specifically pleaded in order to be admissible in evidence, so long as facts and not the evidence by which such a document is covered, are expressly pleaded. See Williams v. Construction Co. (MCC) v. Azubuike (1990) 3 NWLR (Pt. 136) 74; (1990) 5 SCNJ 75; Alhaji B. Thanni v. Saibu & Ors. (1977) 2 SC 89 at 114; U.A.C. Ltd. v. Owuade 13 WACA 207; Odunsi v. Bamgbala (1995) 1NWLR (Pt. 374) 641 at 667; (1995) 1 SCNJ 275; Ipinlaiye II v. Chief Olukotun (1996) 6 NWLR (Pt. 453) 148 at 166; (1996) 6 SCNJ 74 at 93-96 and recently, Okonkwo v. Co-operative & Commerce Bank (Nig.) Plc. & 2 Ors. (2003) 8 NWLR (Pt. 822) 347; (2003) 2 SCNJ 90 at 136 and many others.

In other words, in some cases, unpleaded documents, depending on the nature of the claim, may clearly be seen to constitute evidence by which material facts, are to be proved and will be admitted as evidence, if not pleaded. See Ramchand Naraindas Sadhwani v. Sadhwani (Nig.) Ltd. (1989) 2 NWLR (Pt. 101) 72 CA.

From all these authorities, Chief Awomolo (SAN), can now see that all the fuss, about the tribunal admitting or not admitting the said documents, amount, with respect, to standing on quick sand and a mere dissipation of unnecessary energy in the circumstances. I so hold. Grounds 1, 2 and 4 of the notice of appeal filed on 14th January, 2004 therefore, fail and are hereby dismissed.

I, with respect, do not find any relevance to the case of Owena Bank Ltd. v. Etoile Commerciale, S.A. (supra) (which is a Privy Council decision) – either in respect of Mr. Okupe’s submissions at page 56 of their brief, or even in the instant appeal. The holdings in the said case, have nothing to do with the oral submissions of Mr. Okupe, that since exhibits C and C1, emanated from a foreign country i.e. U.K., and that there must be a pronouncement by the foreign court since, the documents are said to be forged. Where this is to be the case, then, it should have been a great authority in this appeal. But it is not! It dealt with abuse of courts process and the attitude of the court in respect thereof. Counsel, I advise with respect, should not and should please, refrain from citing and relying on an authority that does not support their submissions in court.

I therefore, resolve the said issues Nos. 1 and 3 of the appellants against the appellants and in favour of the respondents. Issues 1 and 3 of the respondents are framed negatively. The answer, is that the tribunal, were correct and right. The consequence, is that grounds 1,2,3,4,5,6,7,8,9, 10, 11 and 17 of the notice of appeal filed on 12th March, 2004, upon which the said Issues cover, also fail and they are accordingly, dismissed.

Now, let me deal quickly with issue No.4 of the appellants and that of the 1st and 2nd respondents and issue No.3 of the 3rd to 12th respondents.

The possession of a Grade II Teachers’ Certificate in my respectful view, is one of the constitutional provisions in section 177(d) and having regard to the provisions of section 187(2) of the 1999 Constitution.

The appellants never produced any evidence to the effect, that the 2nd respondent, never attended a primary school up to school certificate level or its equivalent either in Borno State or any where else in Nigeria. Again, the principle of he who asserts, must prove also applies in this case. The appellants, failed to prove and did not prove, that the 2nd respondent, have not been educated up to at least School Certificate level or its equivalent. I so hold.

However, for a better appreciation, clarity and completeness and for purposes of emphasis even at the risk of repetition, if the Grade II Teachers’ Certificate, is the equivalent, the 2nd respondent as admitted by the appellants, submitted photocopies of his credentials to the 3rd respondent – INEC. The 3rd respondent, produced the said documents at the tribunal which were in their custody and being the best evidence, and were admitted as exhibits J and J1, then, in my respective view, there was no need for the 2nd respondent, to go into the witness box, and give evidence in respect of the said documents that were before the tribunal.

However, since the appellants asserted that the 2nd respondent, did not possess the said certificates, there is no evidence in the records, that they ever caused to be subpoenaed, either the authorities of that School or the principal of the school or even the Borno State Ministry of Education, to produce before the tribunal, their own official copy of the said certificate and/or to give evidence in the witness box, that the 2nd respondent, did not ever attend that school at all.

The appellants, only subpoened the Federal Ministry of Education, Abuja to tender the certified true copy of the result of candidates who sat for Grade II Teachers’ Examination conducted by NTI Kadunafor Bomo Teachers College for Year 1986. Objection was taken as to its admissibility and which objection, was sustained by the tribunal for the reasons that appear in the ruling. See pages 371-373 of the records. The document was marked rejected.

So, by their failure to subpoen those I mentioned hereinabove, and as they asserted, the appellants, completely failed to prove that the 2nd respondent, did not possess the said certificate.

Again, if the Grade II Teacher’s Certificate, is equivalent to a School Certificate, by virtue of section 177(d) of the 1999 Constitution, the only qualification required, is that the candidate, had been educated up to at least Grade II Teachers’ Certificate and not that he obtained or was awarded the certificate. Again, it could be seen, that there was the need, to have investigated and call witness/witnesses in respect of this issue. See the case of Barrister Chukwu v. Mr. Icheonwo & 6 Ors. (1999) 4 NWLR (Pt. 600) 587 at 596 para. E-F CA – per Akaahs, JCA cited and relied on by Mr. Okupe.

Again, what the appellants applied for in their subpoena, was “a statement of result of Grade II Teachers’ Certificate Examination issued by Borno Teachers College Maiduguri”. When Chief Awomolo (SAN), sought to tender it, objection was taken by Mr. Ali (SAN). Chief Awomolo (SAN), withdrew the document. See page 375 of the records.

That of course, was the end of the ground the appellants have pitched their net so to speak. They were therefore left dry and bare so to say. The appellants failed woefully to prove their said allegation against the 2nd respondent even on the preponderance of evidence.

I therefore, agree with Mr. Okupe, that the appellants, having put the educational qualification of the 2nd respondent in issue, and having averred in their pleadings in the petition, that the 2nd respondent, did not submit his credentials to INEC for purpose of verification, the documents submitted by the 2nd respondent, became relevant and admissible.

I also agree with his submission that the circumstances, which would justify this court to interfere, with the findings of the tribunal, do not exist in this instant appeal. I will therefore, not interfere with the said findings that are hereby sustained/affirmed.

I also hold that the judgment of the tribunal, is not against the weight of evidence adduced by the appellants. Rather, the totality of the evidence of the appellants’ said witnesses, gives credence and support, to the said judgment of the tribunal.

In the light of the above, grounds 14, 15, 16 and 17 of the grounds of appeal, fail and they are accordingly dismissed. Issue No.4 of the appellants as couched, is therefore, answered by me, in the affirmative. The remaining grounds 12 and 13 of the grounds of appeal, have in fact, been considered and determined by me while dealing with other issues in this judgment.

As far as I am concerned, the consideration and determination of issues Nos. 1, 3 and 4 of the appellants which are the main thrust and crux of the entire complaints of the appellants should have been the end of this appeal. The Supreme Court had earlier, stated, that intermediate appellate courts including this court, must consider all issues properly raised or formulated by the parties and pronounce on them. That failure to do so, results in breach of right to fair hearing. See Hon. E.O. Araka v. Ambrose N. Ejeagwu (2000) 12 SCNJ 206; (2000) 15NWLR (Pt. 692) 684 at 718 and Ishaya Bamaiyi v. The State & 4 Ors. (2001) 8 NWLR (Pt. 715) 270 at 285; (2001) 4 SCNJ 103 at 116-117.

But in the case of 7-Up Bottling Co. Ltd. & 2 Ors. v. Abiola & Sons Bottling Co. Ltd. (2001) 6 SCNJ 18 at 32; (2001) 13 NWLR (Pt. 730) 469 at 4 93, the Supreme Court, in the lead judgment of Onu, JSC citing the cases of Kotoye v. CB.N. (1989) 1 NWLR (Pt. 98) 419; also reported in (1989) 2 SCNJ 31); Union Bank of Nigeria Ltd. v. Nwaokolo (1995) 6 NWLR (Pt. 400) 127; also reported in (1995) 4 SCNJ 93, and Bamaiyi v. The State (supra), held by the majority of 3.2, that although it is the duty of an appellate court to consider all issues placed before it, but that where it is of the view that a consideration of one, is enough to dispose of the appeal, it is not under any obligation to consider all the other issues posed.

However, Ogundare, JSC (of blessed memory) at page 42 of the SCNJ report or at page 507 of the NWLR paragraphs F-H and supported by Ogwuegbu, JSC at page 49 of the SCNJ report or at page 512 of the NWLR paragraphs D-H referred to several cases in support and reproduced some of them, held, that this should and ought to be so, if it is the final appellate court that can rely on the determination of one issue. That but for an intermediate court, it must consider all the issues.

It is now firmly settled, that where there are two conflicting decisions by a higher court or tribunal, it will not be improper for a Judge say of first instance, to review the points of law involved in the issue and thus, select or adopt which line of decision he should follow.

It is therefore, consoling to me, that although I am bound by the later or latest decision of the apex court of the land, and that I can with respect, follow the same – See Young v. Bristol Aeroplanes Co. Ltd. (1944) 2 All ER 293 at 300, and NEPA & Obayangbona & 60rs. v. Mrs. P. O. Onah (1997) 1 SCNJ 220 at 226; (1997) 1NWLR (Pt.484) 680 at 689 per Mohammed, JSC.

I will or prefer to follow, with respect, the said latest decision.

That being the case, it is my respectful but firm view, that the consideration by me of issues Nos. 1,2 and 4 of the appellants and those of the 1st and 2nd respondents and issues 1,2 and 3 of the 3rd – 12th respondents, disposes and is enough, to dispose this appeal. This is because, in all appeals in respect of the National Assembly/Governorship and Legislative Houses Elections, this court is the final and ultimate appellate court by virtue of section 246(3) of the Constitution of the Federal Republic of Nigeria, 1999. Thus, the decisions of this court in respect thereof, including interlocutory decisions, shall not be subject to any further appeal to or review by any other court. See Apostle Selede Esewe v. Chief Nelson Tebesagbehagbe & 4 Ors. (1988) 5 NWLR (Pt. 93) 134 at 137; James G. Orubu v. N.E.C. & 13 Ors. (1988) 5 NWLR (Pt.94) 323, (1989) 12 SCNJ 254, (1989) 2 NEPLR 24 at 26 ratio 12; Rev. Hyde Onuaguluchi v. Ndu & 2 Ors. (2001) 7 NWLR (Pt.712) 309, (2001) 3, SCNJ 110 at 124 and just recently, Chief Sgt. Awuse v. Dr. Peter Odili & 4 Ors. (2003) 18 NWLR (Pt. 851) 116 at 151, 153, 157 and 169, (2003) II SCNJ 88 at 98, 100.

So, even going by the said minority views of the two learned Justices of the Supreme Court, with respect, this court being the final appellate court, in this appeal, is therefore, entitled, in all the circumstances of this case, not to consider the other issues raised by the parties as they are, in my respectful view, no longer relevant, having regard to the determination of the pivotal, central, fundamental, crucial or very material issues of the controversy/matter, relating to the 1st and 2nd respondents’ qualification to contest the said election. I so hold.

Before concluding this judgment, I wish to make very few comments or observations. With the greatest humility and respect to the learned counsel for the appellants, I regard this case leading to this appeal and its contest at the tribunal and in this court, as perhaps, a storm in a teacup. In my humble but firm view, they amount to much ado about nothing.

At the polls, the electorate showed their preference of the candidate for the office of the Governor. The appellants, were resoundedly, beaten at the said election by a very wide and comfortable margin or majority of 240, 343 votes in favour of the 1st and 2nd respondents. This fact at least, was admitted under cross-examination, by the PW3.

When the 1st respondent contested and won as a Senator, and represented his senatorial zone of Borno State in the Senate, he was qualified to contest the election. But when he won as a Governor, he was not or no longer qualified because, according to the appellants, he was alleged to have presented forged certificates. The whole thing looks or sounds amusing, if not ridiculous to me having regard to the totality of the evidence of the said witnesses for the appellants. Remarkably, the PW3 in his said letter to the National Security Adviser to the President of the Federal Republic of Nigeria, admitted at the trial, and stated in the said letter, that it was written, in order to strengthen their case that was already pending at the tribunal and therefore, sub-judice. But when he was asked by the said adviser, to furnish him with certain information specified in the reply, he also admitted at the trial, that he never again responded to that request. The reason for his refusal or failure to do so, could not be far fetched. Mr. Goatman had arrived at the scene of battle or trial, and was to testify before the tribunal.

Honestly speaking, for Chief Awomolo (SAN) and his steam, to describe the said judgment of the tribunal as being perverse, (and it is not and I so hold), is indeed regrettable, unfortunate and unfair. The attack on the learned Judges of the tribunal (who it has not been shown by them that they had any stake in the matter/controversy), and all the tenuous insinuations that are evident in particulars (a) of ground 5 of the grounds of appeal and in the briefs of the appellants, are with respect, unjustified and indeed, uncalled for in my humble opinion or respectful view. I know and I am aware, that in all election contests in this country Nigeria, only very few Nigerians, accept defeat, if any or if at all.

Finally, I note that the trial of this case at the tribunal, was in my view, unnecessarily and unduly protracted, having regard to the reasons that appear in the record of proceedings. Too bad!

In conclusion, in the final analysis or end result, I find as a fact and hold, that in all the circumstances of this case leading to this appeal, this appeal, with profound respect to the learned counsel for the appellants, is unmeritorious. It lacks and it is indeed, devoid of any substance or merit. It fails and it is accordingly dismissed. I hereby affirm the well considered judgment of the tribunal delivered on 2nd March, 2004 which I am unable and cannot therefore, fault.

Costs follow the event. The 1st and 2nd respondents are entitled to costs. They are awarded N10,000.00 (ten thousand naira) costs payable to them by the appellants. As for the 3rd to 12th respondents, no order as to costs.


Other Citations: (2004)LCN/1604(CA)

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