SAMBO TARIA AMAIMTIBI V MARTINS NNEBEDUM, ESQ
April 3, 2025ATIKU ABUBAKAR & ANOR V. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) & ORS
April 3, 2025Legalpedia Citation: (2019) Legalpedia (CA) 51181
In the Court of Appeal
HOLDEN AT ABUJA
Thu Sep 26, 2019
Suit Number: CA/A/EPT/723/2019
CORAM
UMARU ATO KALGO JUSTICE, SUPREME COURT
UMARU ATO KALGO JUSTICE, SUPREME COURT
PARTIES
SENATOR ALI ATAI AIDOKO USMANPEOPLES DEMOCRATIC PARTY (PDP) APPELLANTS
ISAH JIBRINALL PROGRESSIVE CONGRESS (APC)INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)THE RETURNING OFFICER, KOGI EAST SENETORIAL DISTRICT RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The 3rd Respondent (INEC) conducted election into the Kogi East Senatorial of Kogi State and at the conclusion of the exercise declared the 2nd Respondent as the winner of the election while the 1st Appellant was declared the second. Aggrieved with the result of the election, the 1st and 2nd Appellants filed a petition at the National and State Houses of Assembly Election Petition Tribunal, Kogi State, seeking that it be declared that the 1st Respondent at the time of election was not qualified to contest the said election, that it be ordered that a Certificate of Return be issued by the 3rd Respondent to the 1st Petitioner as winner of the Senatorial Election for Kogi East Senatorial District. The 1st and 2nd Respondents filed Notices of Preliminary Objections challenging the competence of the grounds of the petition and against the joinder of the 4th Respondent. The Trial Tribunal dismissed the petition on its merits on the premise that the Appellants failed to prove any of the grounds of the petition. Dissatisfied with the decision of the Tribunal, the Appellants have appealed to the Court of Appeal.
HELD
Appeal Dismissed
ISSUES
From a correct interpretation, meaning and intendment of Section 66(l)(i) of the 1999 Constitution, as amended, read together with Section 138(l)a of the Electoral Act 2010 as amended, whether the Tribunal rightly determined that Ground 1 of the Petition which is founded on the presentation of forged Certificate to ZNEC by the 1st Respondent was not cognizable and within the jurisdiction of the Tribunal. (Grounds 1, 2, 3, 4 and 8 of the Notice of Appeal). Whether the Appellants discharged the burden of proof of the said allegation of presentation of forged certificate to INEC by the 1st Respondent under Section 66(l)(i) of the 1999 Constitution, as amended. (Grounds 9, 10, 11 and 16 of the Notice of Appeal) Whether the trial Tribunal was right in its decision on Ground 2 of the Petition when it held that the said ground is incompetent and/or not proved. (Grounds 5, 6, 12,13 and 14 of the Notice of Appeal) Whether the trial Tribunal was right when it held that ground 3 of the petition was not proved. (Ground 15 of the Notice of Appeal). Whether ‘the trial Tribunal was right when it struck out the name of the 4th Respondent on the ground that the 4th Respondent was wrongfully joined as a party to the Petition. (Ground 7 of the Notice of Appeal).
RATIONES DECIDENDI
DISQUALIFICATION OF CANDIDATE FOR FALSIFICATION OF DOCUMENTS – WHAT CONSTITUTES DISQUALIFYING FACTOR UNDER SECTION 66(10 OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999?
“In Agi Vs PDP & 2 ORS (supra) Ogunbiyi JSC at page 455 had this to say;
“To disqualify a candidate for falsification the infraction must relate to every point on which the qualification depends. Thus, where the alleged falsified document is not a qualifying factor under the constitution of Nigeria, its presentation cannot disqualify an otherwise qualified candidate.”
In Ndul VS Wayo (supra) the Supreme Court among others had this to say;
This Court in AGI Vs PDP (supra) at 455-C and G held Per Ogunbiyi, JSC. “The Constitution takes precedence over other laws. Therefore where there is a matter of alleged falsification of a document or rendering of a false statement as alleged as in this case, it must relate to qualification or disqualifying factor by virtue of the Constitution of the Federal Republic of Nigeria ….. Section 31 of the Electoral Act did not by any stretch of imagination create new grounds of disqualification or non-qualification. This authority is fully application in the instant appeal. Section 65(1) of the 1999 Constitution provides: 65(1) subject to the provisions of section 66 of this constitution a person shall be qualified for election as a member of: (b) the house of representatives, if he is a citizen of Nigeria and has attained the age of thirty years, Section 66(a)(1) sets out the factors that will disqualify a certificate from contesting election into the Senate or House of Representatives. These disqualifying factors are also contained in paragraph 2 of Exhibit GN2 (2nd Respondent’s Guidelines). Dismissal or Termination of employment is not one of these factors. All the submissions of learned counsel in respect of exhibits GN982 are therefore of no moment. The two lower Courts were therefore right when they held that even if it was established that the 1st Respondent gave false information (not so found) it would not be ground for disqualifying him as termination of employment is not a disqualifying factor under section (sic) 65(1) and 66 of the Constitution”.
DISQUALIFICATION OF CANDIDATE FOR FALSIFICATION OF DOCUMENTS – BASIS ON WHICH THE FALSIFICATION OF A CERTIFICATE CAN BE A GROUND FOR DISQUALIFICATION OF CANDIDATE
“For a certificate to be relevant for consideration it must relate to the grounds for disqualification as in the case of academic certificate or birth certificate. For the purpose of argument, it may be asked, if the 1st Respondent had presented a forged Certificate of medical fitness or false certificate of vehicle Road worthiness to INEC can they be facts for disqualification under Section 66(l)(i) of the Constitution of the Federal Republic of Nigeria. The answer is No.”
FALSIFICATION OF DOCUMENT- EFFECT OF PRESENTATION OF FALSE INFORMATION IN FORM CF001
“Even then, by the position of the law in the recent decision of the Supreme Court in Modibo v Usman (Supra), the mere presentation of false information in Form CF 001, by itself renders the Form a forged document. This is because Form CF001 is a certificate by virtue of the “Certification” at the end of the form.”
CERTIFICATE – DEFINITION OF CERTIFICATE UNDER SECTION 107 (1) AND 66(L) (I) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA
“This argument is completely misconceived and untenable in view of the latest Supreme Court decision of Modibo v. Usman (supra) where Ejembi Eko, JSC laid to rest the definition of “certificate” under Section 107 (1) and 66(l)(i) of the Constitution, to mean any document that is forged and this includes Form CF001, when it contains a false information or a forged document attached to it. The apex court expatiated thus:
“Forgery afterall, consists of the making of a false or writing knowing same to be false with intent to deceive or that it may be regarded or used as a genuine document: Smart v. The State (1974) 11 SC 173 at 186. By this definition both INEC Forms CF 001 and CF 002 corrupted or tainted by the forged Primary School Leaving Certificate are all forged documents for the purpose of Section 66 (1) of the Constitution. Sections 107(l)(i) and 66(l)(i) of the Constitution are in pari material. I had, in Dide & Anor. v. Seieketimibi & Ors (2009) LPEIR – 403.8 (CA) stated that the provisions of Section 107(1)0) of the Constitution being unambiguous and plain are entitled to be given their natural meaning, and that the word “certificate” used in Section 107( l)(i) of the Constitution has broader meaning than the restricted meaning given to the words “school certificate or its equivalent” by Section 318(1) (read together with Section 106( c)) of the same Constitution.”
In the said Dide v. Seleketimibi (supra) I expressed the opinion, which I hereby endorse, that:-
The noun “certificate” is derived from the verb -“certify”. To certify: in its ordinary natural sense, means to attest, verify, testify, vouch ascertain, determine, or to show. See English Thesarus Geddes & Grosset 2001 ed„ Chambers Mini Dictionary.
“Certificate” as a noun. Therefore, means any document that attests, testifies, vouches, ascertains, and verifies the facts therein. According to BLACK’S LAW DICTIONARY, a certificate is a document in which a fact is formally” attested. In my view, a certificate in the context of Section 107(l)(i) (and also Section 66(l)(i)) of the Constitution has wider connotation than the school certificate in Section 106(c) (and also Section 65(2}(a) which is Defined in Section 318(1)’ of the same Constitution.”
BURDEN OF PROOF – ON WHOM LIES THE BURDEN OF PROOF IN A PROCEEDING
“The law is settled that the burden of proof in a suit or proceeding lies on the person who would fail if no evidence at all were given in either side. See section 132 of the Evidence Act, 2011 (as amended). It is also trite that by section 135(1) of the Evidence Act, if the Commission of a crime by a party to any proceeding is directly in issue in any proceeding Civil or Criminal, it must be proved beyond reasonable doubt.”
JOINDER OF PARTIES- WHETHER IT IS EXPEDIENT TO JOIN OFFICERS OF THE INDEPENDENT ELECTORAL COMMISSION IN ELECTION PETITION
“The law makes it clear that is unnecessary to join an officer of the 3rd Respondent; in this case, a Returning Officer to a petition, notwithstanding the nature of the complaint. The 3rd Respondent, which is the electoral today is the necessary and statutory respondent to be joined as a party and in the circumstance, is in a best position to defend the election conducted and give effect to the judgment of the Tribunal or court. It is superfluous to join the officer of the 3rd Respondent, who in any event can be called as a witness to prove the allegations in the petition. However, the phrase “it shall not be necessary” as used in the provision is permissive and does not connote a complete bar or restriction to the joinder of such INEC officers. See Egolum V. Obasanjo (1999) 7 NWLR (pt 61) 335.”
ELECTION PETITION – RIGHT OF A PETITIONER TO ARGUE ALLEGATION OF CORRUPT PRACTICES AND NON-COMPLIANCE TOGETHER IN ONE GROUND OF PETITION
“There is no law that bars a petitioner from questioning an election by reasons of both corrupt practices and non-compliance into the Electoral Act, 2010 together in one ground of the petition. What is important is for the petitioner to set out separately and distinctly the particulars in support of each complaint and prove each allegation as required by law. See the latter decision of this court in PDP V Ali & Ors (2015) LPELR – 40370 (CA). To strike out a ground of a petition merely for the reason of combining the allegations of corrupt practices and non-compliance with the Electoral Act in my view is tantamount to nothing else but mere technicality which is frowned upon by the courts.”
ELECTION PETITION – IMPROPRIETY OF RELYING ON NON-COMPLIANCE WITH THE ELECTORAL GUIDELINES WHERE ASPECT OF THE GUIDELINES RELIED ON IS INCONSISTENT WITH THE PROVISIONS OF THE ELECTORAL ACT
“The authority of Nyesom V. Peterside (2016) 7 NWLR (Pt 1512) 574 relied upon by the Tribunal did not decide that a ground of an election petition is incompetent simply because it makes reference to the guidelines regulating election. The holding in the decision is that it is improper to rely on non-compliance with the guidelines where the aspect of the guidelines relied on is inconsistent with the provisions and principles of the Electoral Act. Non-compliance with the provision of the Guidelines which is not inconsistent with the Act qualifies, as non-compliance with the Act and can therefore be a ground for questioning an election”
DOCUMENTARY EVIDENCE – WHETHER IT IS THE DUTY OF COURT TO LINK DOCUMENTS TO SPECIFIC AREAS IN A PARTY’S CASE
“It is not the duty of the court to enter into the arena, to research into the documents and link the documents to specific areas in a party’s case. The Tribunal had no duty to accord probative value to the barrage of documents heaped on the Tribunal. See Belgore v Ahmed (2013) 8 NWLR (Pt 1358 60 AT 100.
The Supreme Court, in a similar situation held in Ladoja v. Ayimobi (2016 (LPELR – 40658(SC) Per Clara Bata Ogunbuyi J.S.C at pp 48-50 thus:
” I seek to say that the law is settled on documents tendered in Court which purpose and worth must be demonstrated through a witness. It is settled also that the duty lies on a party who wants to rely on a document in support of his case to produce, tender and link or demonstrate the documents tendered to specific parts of his case. The fact that a document was tendered in the course of proceedings does not relieve a party from satisfying the legal duty placed on him to link his document with his case. See C.P.C.V INEC (2011) 18 NWLR (Pt. 1279) 483 at 546-547.”
DOCUMENTARY EVIDENCE- DUTY OF A PETITIONER IN TENDERING DOCUMENTARY EVIDENCE BEFORE THE COURT
“It is not the Court’s lot be saddled with nor can it suo motu assume the partisan responsibility of tying each bundle of such documentary evidence to the appellant’s case to prove the malpractice alleged. It would amount to the Court doing as an arbiter must not get into the arena and engage itself in doing a case for one party to the disadvantage of the other party. The Petitioner has the duty to tie the documentary evidence to the facts he pleaded through a witness. Anything short of that would be taken as dumping the evidence (documents) on the Tribunal.”
ALLEGATIONS OF NON-COMPLIANCE WITH THE PROVISIONS OF THE ELECTORAL ACT – DUTY OF A PETITIONER WHO ALLEGES NON-COMPLIANCE WITH THE PROVISIONS OF THE ELECTORAL ACT
“Where a petitioner complains of non-compliance with the provisions of the Electoral Act, the petitioner has the duty to prove the non-compliance alleged based on what happened at each of the polling unit so as to establish substantial non – compliance that affected the result of the election. The import of this duty enjoins the petitioner to call witnesses who were at each polling unit during the election. The Supreme Court in Gundiri V Nyako (2014 ( 2 NWLR (Pt 1391) 211 at 246 per Clara Ogunbuyi, J.S.C, held thus;
“Where a Petitioner complains of non-compliance with the provisions of the Electoral Act, he has a duty to prove the non-compliance alleged based on polling unit by polling unit. See again the case the case of Ucha & Anor. v Elechi & 1774 Ors(2012) 3 SC. (Pt.l) P. 26 (2012) 13 NWLR (PT. 1317) 330. It is therefore physically impossible for one person to have supervised the election in ten polling units given the fact that witnesses are to be called from each polling unit.
See the case of Senator Julius Ali Uchav. Chief Martin Elechi & Ors (Supra) 2012 3 SC. (Pt. 1 1) p. 26 (2012) 13 NWLR (Pt.1317) 330. There is also no evidence indicating or giving the reason why the (agents) were not called or available” See also Abubukar V. Yar’Adua (2008) 19 NWLR (Pt. 1120) 1 at 173, Nyesom V. Peterside (2016) 7 NWLR 1512) 425 at 533-535. to their case. It left their case bereft of any proof whatsoever. See Emmanuel V Umana (MO 1) (2016) 12 NWLR (Pt 1526) 179 at 253 -257. The law is trite that a ground of petition predicated on corrupt services touches on the realm of criminality which must be proved beyond reasonable doubt. Where a petitioner fails to discharge the onus of proof placed on him, as in this appeal, his case must fail. See Chioma v. Ndu (1992) 1 LRECN 290. Kurfi V. Mohammed (1992)) 1 LRECN 405, Ofodule V. Chinwaba (1992) LRECN 213, Nyesom v Peterside (supra), Ogboru v Olowa (supra) yahaya v Darwanbi (2016) 7 NWLR (Pt. 1511) 284 Omisore v Anegbesola (2015) 15 NWLR (Pt 1482) 205 at 289.”
EXECUTIVE DIRECTOR – DUTY OF AN EXECUTIVE DIRECTOR
“It must be mentioned that an executive director is an employee of the company and devotes his full time and attention to the work of his employer i.e. the company. An executive director has the same legal responsibility and is subject to the same duties as a non-executive director, however, arising from his contract of employment he has the duty to give continuous attention to the business of the company. This is so because he is employed by the company to attend to the daily running and management of the company. He has a contract of service with his employer and earns salary. His appointment, rights, discipline and tenure are regulated by the Articles of Association of the company as well as his contract of service with the company. His remuneration as director is determined by the board of directors. He holds a salaried employment with the company together with his directorship, and effectively, he is an employee and a member of staff of the company and whatever rights and privileges are available to the employees of the company are available to such director. It is therefore usual for executive directors to have contracts of service with their employer i.e. the company. See generally Longe VS. FBN (2006) 3 NWLR (PT. 967) 228; Cyclists Touring Club VS. Hopkinson (1910) 1 CH. 179; Stroud Vs. Royal Aquarium Society (1903) 89 LT 243; RE LEE BEHRENS &CO (1932) 2 CH. 46.”
CASES CITED
Not Available
STATUTES REFERRED TO
Constitution of the Federal Republic of Nigeria, 1999 as amended Electoral Act 2010 (as amended) Evidence Act, 2011 (as amended)
