By Legalpedia

ALL PROGRESSIVE CONGRESS (APC) & ANOR VS. GODWIN NOGHEGHASE OBASEKI & 2 ORS

APPEAL NO: SC/CV/376

Areas Of Law:

Appeal, Court, Criminal Law And Procedure, Election, Law Of Evidence, Practice And Procedure, Stare Decisis

Summary Of Facts: The brief fact of the case is that the 1st Respondent contested and won the gubernational election into the office of the Governor of Edo State.

The Appellant initiated this suit on the grounds that the information in 1st Respondent’s INEC Form EC9 that he graduated from University of Ibadan in 1979 and that he worked with Afrinvest between 1994 and 2016 is false and that the 1st Respondent’s educational certificates submitted along with his Form EC9 to the 3rd Respondent are false and forged.

The Appellants sought for an order of the Federal High Court to make a determination disqualifying the 1st Respondent from participating in the Governorship election of Edo State having falsified and forged his credentials.

The trial Court found that the allegation of falsification and forgery were not proved by credible evidence; and therefore dismissed the Appellant’s claim. Piqued by the decision of the trial Court, the Appellants lodged an appeal before the Court of Appeal, which found no merit in the appeal, hence it dismissed same.

The decision of the lower court has prompted this appeal by the Appellants contending that the lower courts misconstrued the case presented by the Appellants, set up and decided a case different from that presented by the Appellants in their pleadings and evidence.

The 1st Respondent filed a Cross Appeal against the judgment of the Court of Appeal.

HELD:

Appeal Dismissed; Cross Appeal Struck Out

ISSUES FOR DETERMINATION

•Whether on a proper consideration of the appellants’ pleadings, and the evidence led in support, the lower Court did not misconstrue the case of the appellants and thereby arrive at conclusions, which are contrary to the case of the appellants against the respondents.

•Whether on a proper consideration of the appellants case as presented in the pleadings, supported by credible evidence and guided by applicable decisions of the Supreme Court, the lower Court was not wrong when it held that appellants did not prove their case.

•Whether having regard to settled rules of interpretation, the lower Court did not err by reading into Sections 31(5) and (6) of the Electoral Act, 2010 as amended what was not enacted therein, thus putting on the appellants a burden of proof not justified by the language of Section 31(5) and (6) of the Electoral Act, 2010 as amended.

•Whether having regard to the wordings of Sections 31(5) of the Electoral Act, 2010 and Section 182(1)(j) of the 1999 Constitution as amended, the lower Court was right when it held that to prove the allegations against the 1st respondent, the appellants have to prove all elements of forgery and falsification of documents alleged.

•Whether the lower Court was right when it held that the evidence of DW1 was not hearsay.

•Whether the complaint of the appellants to the effect that the trial Court failed to consider the objection raised by the appellants against some of the documents tendered by the 1st respondent was properly addressed and resolved by the lower Court in the light of the circumstances of this case and the applicable law.

•Whether it was right and in keeping with the tenets of justice for the appellate lower Court to speculate and adduce its own reasons or grounds for the finding made by the trial Court which the Court failed to justify by reference to the pleadings and/or the evidence before the Court.

•Whether or not considering the state of pleadings and evidence led by the Appellant, the trial Court was right when it held that the Plaintiff did not prove his case and consequently dismissed the Plaintiff’s case.

RATIONES

BURDEN OF PROOF- ON WHOM LIES THE BURDEN OF PROVING THE EXISTENCE OR NON-EXISTENCE OF A FACT

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

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

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

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

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

FALSE DECLARATION – STANDARD OF PROVING AN ALLEGATION OF FALSE DECLARATION IN AN ELECTION

‘’ False information in INEC Form EC9, an affidavit, amounts to lying on oath or false oath. By virtue of S. 31(1) and (2) of the Electoral Act 2010 as amended, the 3rd respondent was bound to receive the affidavit and the documents submitted by the 1st respondent as indicating that he has fulfilled all the constitutional requirements for election into the office of Governor of Edo State. Such a false declaration on oath to a public officer bound by law to receive it as evidence of the facts declared therein is no doubt a crime. Being a crime, the allegation of its commission must be proven beyond reasonable doubt. This Court had in Abubakar & Anor V INEC & Ors (2020) 12 NWLR (1737) 37 at 110 made this restatement. The crime is established once it is shown that the information is false. The nature of the information in issue in this case requires evidence of more than a previous inconsistent statement of the declarant to prove that the current information is false’’.- PER E. A. AGIM, J.S.C.

FORGERY – MODE OF PROVING AN ALLEGATION OF FORGERY

“Forgery being a crime, allegation of its commission must be proved beyond reasonable doubt. S.135(1) of the Evidence Act 2011 provides that “If the commission of a crime by a party to any proceedings is directly in issue in any proceeding civil or criminal it must be proved beyond reasonable doubt. PER E. A. AGIM, J.S.C.

FALSE INFORMATION –CONSEQUENCE OF PRESENTING FALSE INFORMATION BY CANDIDATES IN AN ELECTION

“In accordance with Section 31(6) of the Electoral Act —

If the Court determines that any information contained in the affidavit or any document submitted by (the) candidate is false, the Court shall issue an order disqualifying the candidate from contesting the election.

The disqualification follows the proof beyond reasonable doubt that the candidate had presented a false/forged document in aid of his assertion that he was qualified to contest the election. Since falsification and/or forgery of a document are criminal offences; the standard of proof of that allegation of criminality is one of proof beyond reasonable doubt: Section 135 of the Evidence Act, 2011; Maune v. Abdul (2001) 4 NWLR (pt. 702) 95; Agwasim v. Ejivumerwehaye (2001) 9 NWLR (pt. 718) 398. And of course, it is the duty of the plaintiff to prove every averment in his pleadings, particularly where issues are duly joined on such pleadings: Omoboriowo v. Ajasin (1983) 10 SC 178. Where no satisfactory evidence was led in proof of any fact in issue; the trial Court is entitled to dismiss such issue: Omoboriowo v. Ajasin (supra). PER E. EKO, J.S.C

FINDINGS OF FACTS BY THE LOWER COURTS – STATUS OF AN UNCHALLENGED FINDING OF FACTS BY THE LOWER COURTS

‘’The finding of fact of the trial Court that the Appellants had speculated on that assertion and that they did not prove that fundamental super structure on which their case was premised and erected was fatal to their case. There being no attack or challenge mounted against those specific adverse findings of fact by the two Courts below those specific adverse findings of fact remain binding and subsisting between the parties in this appeal. Abiru, JCA, in Bello Garba Bello v. The State (2014) LPELR-41075 (CA) had stated, and I endorse the statement, to wit —

It is settled that where there is no appeal against specific finding of fact by the trial Court, the finding remain unassailable and is binding on the parties. It cannot be re-examined by this Court: Alakija v. Abdulai (1995) 6 NWLR (pt 552) 1; Opara v. Dowel Schlumberger (Nigeria) Ltd (2006) 15 NWLR (pt. 1002) 342; Arnale v. Sokoto Local Government (2012) 2 NWLR (pt. 1292) 181; SCC (Nigeria) Ltd v. Anya (2012) 9 NWLR (pt. 1305) 273; Nwazurike v. Nwachukwu (2012) 3 NWLR (pt. 1342) 503; Nwaogu v. Atuma (2013) 11 NWLR (pt. 1364) 117’’.

– PER E. EKO, J.S.C

ALLEGATION OF FORGERY – PROOF OF AN ALLEGATION OF FORGERY

“Being an assertion/allegation of forgery of a certificate, it is one that undoubtedly falls within the realm of criminality that by law; both statutory and procedural, has to be proved beyond reasonable doubt by dint of Section 135 (1) and (2) of the Evidence Act, 2011 as well as Re-Amadi v. State (1993) SCNJ, 68, Famuroti v. Agbeke (1991) 5NWLR (pt. 189) 1 SC, Buhari v. Obasanjo (2005) 7 SC (pt. 1) l, Aituma v. State (2006) All FWLR (pt. 318) 671, Audu v. INEC (No. 2) (2010) 13 NWLR (pt. 1212) 456 at 507, Uzoka v. FRN (2010) 2 NWLR (pt. 1177) 118, Akinkugbe v. Ewulum (2008) 6 MJSC, 134, CAN v. Nyala (2012) 1 1 MJSC, 1, Obi-Odu v. Duke (2006) All FWLR (pt. 337) 537. PER M. L. GARBA, J.S.C.

STARE DECISIS – CONDITIONS FOR THE APPLICABILITY OF THE PRINCIPLE OF STARE DECISIS ‘’The application of any principles of law laid down, enunciated, stated and restated (repeatedly) in earlier or previous cases, depends largely on the peculiar facts and circumstances that unveiled and are disclosed in later cases without which such principles cannot be applied in a vacuum. The Courts do not apply the same set of principles on cases having different factual situations unless such cases are on all fours with one another and it is the facts of a case that frame issues to be decided on which principles of law would/may be laid to be applicable to later cases in which the facts are the same or substantially similar.

In the famous case of Fawehinmi v. NBA (No. 2) (1981) 2 NWLR (pt. 105) 558 at 650, Oputa, JSC, in his usual erudition and proficiency had put the position thus:-

“It is good to call the Court’s attention to its pronouncements in a previous case. Under system (which we inherited from England and from Common Law) the formulation of general principles had not preceded decisions. Our case law is the law of the practitioner rather than the law of the philosopher. Decisions have drawn their inspiration and strength from the very facts which framed the issue for decision.”

See also Babatunde v. PAS. & T.A. Ltd. (2007) 13 NWLR (pt. 1050) 113, Onyia v. State (2008) 7 – 12, 120, Osakue v. F.C.E.T. Asaba (2010) 10 NWLR (Pt. 1201) 1, (2010) 42 NSCQR, 981, Obasi Bros. Co. Ltd. v. M. B.A. laid. (‘2005) 9 NWLR (pt. 929) 117, Ugwu v. Ararume (2007) 12 N WLR (pt. 1048) 36, on the application of previous decisions to later cases by the Court’’. – PER M. L. GARBA, J.S.C.

ONUS AND STANDARD OF PROOF – ONUS AND STANDARD OF PROOF IN AN ALLEGATION OF FALSE INFORMATION AND FORGERY

“The onus and standard of proof required under the Evidence Act and the Constitution is for the Appellant to prove the information that was false and the forgery committed, beyond reasonable doubt. See Section 133(2) of the Evidence Act, 2011, as amended. – PER A. ABOKI, J.S.C.

ALLEGATION OF FALSIFICATION AND FORGERY – BURDEN AND STANDARD OF PROVING AN ALLEGATION OF FALSIFICATION AND FORGERY IN AN ELECTION ‘’ The burden of proving the allegation of falsification and forgery is on the person asserting it, and must be proved beyond reasonable doubt, see: Ogah V. Ikpeazu & Ors (2017) LPELR-42372 SC, where my Lord BAGE, JSC, (Now HRH) held as follows:

“…where there is an allegation that a person has presented a forged certificate to I.N.E.C., the burden and standard of proof should be as restated by this Court in the case of Kakih v. P.D.P. (2014) NWLR (Pt. 1430) 374 at 423. This Court held as follows: “By virtue of Section 362 and 363 of the Penal Code, a party who asserts that another person presented a forged certificate must prove beyond reasonable doubt that the certificate was presented with the knowledge that it would be used fraudulently or dishonestly as genuine. To have an increased velocity to this argument is that every forgery requires proof of requisite mens rea, i.e. knowledge that the document presented was going to be used fraudulently or dishonestly as genuine, which onus must be discharged by the Appellant. See: Nwobodo v. Onoh (1984.) 1 S. C. NLR 1; Torti v. Ukpabi (1984) 1 NSCC 141 at 145’’.

– PER A. ABOKI, J.S.C.

CONCURRENT FINDINGS OF FACT BY LOWER COURT – ATTITUDE OF THE APPELLATE COURT TO CONCURRENT FINDINGS OF THE LOWER COURTS ‘’Appellants’ appeal is against the concurrent findings of fact by the trial and lower Courts, Appellants failed to show that the findings are perverse, and this Court does not tinker with concurrent findings of fact unless there are cogent reasons for so doing, In the instant appeal, I find no such reason. See: Leventis Technical Ltd V. Petrojessica Ent Ltd (1999) 6 NWLR (Pt. 605) 45 at 47, Emiator V. The Nigerian Army & Ors (1999) 12 NWLR (Pt. 631) 362 at 3721 Okeke & Ors V. Adu & Ors (1981) 11-12 SC at 42, Ibodo V. Enarofia (1980) 5/7 SC 42 and University of Calabar V. Essien (1996) 10 NWLR (Pt. 477) 225’’. – PER A. ABOKI, J.S.C

Statutes Referred To:

Constitution of the Federal Republic of Nigeria, 1999 (as amended) Electoral Act, 2010(as amended) Evidence Act, 2011