In the Supreme Court of Nigeria
Holden at Abuja
On Friday, the 7th day of July, 2023
Before Their Lordships
Mohammed Lawal Garba
Ibrahim Mohammed Musa Saulawa
Adamu Jauro
Tijjani Abubakar
Emmanuel Akomaye Agim
Justices, Supreme Court
SC/CV/614/2023
Between
Chief Ikie Aghwarianovwe Appellant
And
Peoples Democratic Party
Oborevwori Sheriff Francis Orohwedor
Independent National Electoral Commission Respondents
(Lead Judgement delivered by Honourable Adamu Jauro, JSC)
Facts
The Appellant and the 2nd Respondent contested the 1st Respondent’s primary election for nomination of its gubernatorial candidate for Delta State, ahead of the 2023 general elections. At the conclusion of the primary election, the 2nd Respondent emerged as winner of the election with 597 votes while the Appellant scored zero. The Appellant, who felt aggrieved with the outcome of the election, instituted an action (Suit No. FHC/R/CS/32/2022 – CHIEF IKIE AGHWARIANOVWE v PDP & 9 ORS.), praying the court to disqualify the 1st Respondent from fielding any candidate in the Delta State gubernatorial election. The suit was dismissed by the trial court, and the appeal was also dismissed with costs of N9 million. The further appeal to the Supreme Court was subsequently discontinued.
In October 2022, the Appellant commenced another action, where he claimed, inter alia, that the 2nd Respondent was not qualified to contest for the office of Governor of Delta State, having provided false information in support of his constitutional requirements to contest for the office. The 1st and 2nd Respondent filed their Statement of Defence and Notices of Preliminary Objections, challenging the jurisdiction of the trial court on grounds that the suit was statute barred, constituted an abuse of court process and that the Appellant had no reasonable cause of action.
To establish his case, the Appellant called three witnesses from INEC, Ambrose Ali University and Delta State University, who testified on subpoena duces tecum, while he testified as PW4. The witnesses tendered certified true copies (CTC) of the 2nd Respondent’s Form CF001, his affidavit in support of personal particulars submitted to INEC in 2018 for the 2019 general elections when he contested for a seat in the Delta State House of Assembly (Exhibit P2A); CTC of the 2nd Respondent’s Form EC9, affidavit in support of his personal particulars submitted to INEC for the 2023 general elections (Exhibit P3A); CTC of the Ambrose Ali University Convocation Brochure (Exhibit P5); and CTC of the 2nd Respondent’s MSc certificate (Exhibit P9). The Appellant asserted that the 2nd Respondent was known by different variation of names in the documents submitted to INEC, and that the West African School Certificate (WASC) submitted along with åhis Form CF001 to INEC in 2018 had his date of birth as “åNovember 12, 1979” while his other documents bear “19th June, 1963” as his date of birth. He posited that the 2nd Respondent, having answered “NO” to the question whether he had ever submitted a forged certificate to INEC in his Form EC9 submitted in 2022, had thereby provided false information and lied on oath as his WASC certificate with different date of birth was forged. He asserted further that the “Age Declaration” deposed to in 1982 and the “Affidavit as to Correction of Date of Birth” deposed to by the 2nd Respondent in 2003 cannot correct the date on his WASC, as the certificate was not issued by the 2nd Respondent. The disparity in the date the 2nd Respondent obtained his MSc, was also highlighted by the Appellant.
The 1st and 2nd Respondent, on their part, called witnesses to refute the allegations of the Appellant. They stated that there is no other person other than the 2nd Respondent laying claims to the certificates submitted to INEC by the 2nd Respondent, and that the names – “Francis” and “Oborevwon” were constant in all the credentials of the 2nd Respondent. They stated further that the date “November 12, 1979” on the 2nd Respondent’s WASC certificate was an error on the part of the examination body, and not the fault of the 2nd Respondent. He stated further that his MSc examinations were taken in 2009, but the certificate was issued in 2010.
At the close of trial, the court delivered its judgement holding that the suit was statute barred because the claims of the Appellant were in respect of documents submitted to INEC in 2018. The court held further that contrary to the claims of the Appellant that details of the 2nd Respondent was submitted to and published by INEC on 4th October 2022, the Appellant stated that the publication was done after delivery of judgement of the Court of Appeal. in respect of a suit filed by a certain David Edevbie. The court noted that the judgement was delivered on 29th August, 2022, and if the 2nd Respondent’s details were submitted to INEC within seven days thereof, the Appellant’s cause of action would have accrued on 19th September, 2022. Thus, the suit which was instituted on 13th October, 2022 was statute barred. His Lordship also held that the Appellant had no reasonable cause of action, as the cause of action accrued since 2018. The court held further that the suit was an abuse of court process, since the Appellant set out to achieve the same purpose as in Suit No. FHC/R/CS/32/2022 – to disqualify the 1st and 2nd Respondents from participating in the 2023 general elections. Deciding the suit on the merit, the court held that the Appellant failed to prove the allegation of supplying false information, or submitting forged certificate against the 2nd Respondent. The suit was thereby dismissed. The appeal to the Court of Appeal was unsuccessful. The Appellant filed a further appeal, to the Supreme Court.
Issues for Determination
Whether the Court of Appeal rightly affirmed the decision of the trial court upholding the Preliminary Objections of the 1st and 2nd Respondent.
Whether the Honourable Justices of the Court of Appeal were right in affirming the decision of the trial court, that the Appellant has not proved false information against the 2nd Respondent under Section 29(5) and (6) of the Electoral Act 2022.
Arguments
Submitting on the first issue, the Appellant posited that he did not state anywhere that his claim was in respect of events which occurred in 2018, and that the court erroneously used his evidence to prove his cause of action. He argued that the evidence of false declaration on oath in contention, is the answer “NO” to the question whether the 2nd Respondent has ever submitted a forged certificate to INEC, in his Form EC9 of 2022, not his date of birth in his WASC certificate attached to Form CF001 submitted to INEC in 2018. Relying on SALEH v ABAH (2017) 17 NWLR (PT. 1649) 515, the Appellant submitted that since the action was filed within fourteen days of the publication of the 2nd Respondent’s details, the action was not statute barred. The Appellant posited further, that the cause of action under Section 29(5) and (6) of the Electoral Act, 2022 arises upon the publication of the name, particulars and documents of a candidate, and reference was made to publication of the 2nd Respondent’s details only in 2022. He argued that the publication was done on 4th October, 2022 and the action was filed on 13th October, 2022; hence, it was not statute barred. Arguing on the issue of abuse of court process, the Appellant stated that Suit No. FHC/R/CS/32/2022 was filed pursuant to Section 84(14) of the Electoral Act, while the suit resulting in the present appeal was filed pursuant to Section 29(5) and (6) of the Electoral Act. On issue two, the Appellant argued that he proved the 2nd Respondent submitted information which was false, but the court left the arena of false information to focus on forgery, which though related, is different.
The Respondents on their part submitted that by Section 285(9) of the Constitution, a pre-election matter must be filed not later than fourteen days from the occurrence of the event or action complained of. Since the Appellant’s suit was predicated on the event which occurred in 2018, the action was clearly statute barred. They submitted further that INEC did not publish the details of the 2nd Respondent on 4th October, 2022 as alleged by the Appellant. It was the names of candidates that were published on 4th October, 2022 under Section 32(1) of the Electoral Act, not publication of their details under Section 29(3) of the Act. They argued that the suit was an abuse of court process, and that the court rightly found that the 2nd Respondent met the constitutional requirements to contest for the office of Governor.
Court’s Judgement and Rationale
Deciding the first issue, the Apex Court described an accrual of cause of action as the moment the action of the Defendant which the Plaintiff complains about in the suit takes place. The Supreme Court found that the Appellant’s complaint is that the 2nd Respondent’s Form EC9 contains false information, when he gave the answer “NO” in response to the question whether he had ever submitted a forged certificate to INEC. The false information alleged by the Appellant was that the 2nd Respondent’s WASC certificate submitted to INEC along with his Form CF001 in 2018, contains a date of birth different from his actual date of birth. Thus, the court must first consider whether the 2nd Respondent’s WASC certificate submitted in 2018 was forged, to determine if the 2nd Respondent provided false information by answering the said answer in the negative. The action of the Appellant is a pre-election matter which must be filed not later than 14 days from the date of occurrence of the event – Section 285(9) of the 1999 Constitution. It is visible to all that the action of the Appellant, which was instituted on 13th October, 2022, against a cause of action which accrued in 2018, was statute barred.
Distinguishing the authority of SALEH v ABAH relied on by the Appellant, the Supreme Court reiterated the trite principle of law that a case is only an authority for what it decides and principles of law established in any given case are only applicable and binding within the peculiar facts and circumstances of that case – ALIYU v NAMADI & ORS. (2023) LPELR-59742(SC). The case of SALEH was decided before the fourth alteration to the Constitution and the provision of Section 285(9) of the Constitution, which provided for limitation period for filing a pre-election matter and forbade any election tribunal or court from declaring as winner of an election, a person who did not fully participate in all stages of the election. The Supreme Court, therefore, decided that the action was statute barred, and the courts lacked jurisdiction to entertain same.
Regarding the second issue, the court highlighted the provisions of Sections 177, 182(1)(j) of the 1999 Constitution and Section 29(5) & (6) of the Electoral Act relied on by the Appellant. Section 182(1)(j) only disqualifies a candidate who presented a forged certificate to INEC. Though the Appellant herein stated that he did not allege forgery against the 2nd Respondent, but that he provided false information given the date of birth on his WASC certificate, the court held that the Appellant can only reasonably maintain an action under Section 182(1)(j) if the candidate submitted a forged certificate to INEC. Assuming the Appellant relies solely on the information contained in the 2nd Respondent’s WASC certificate as false information, and thus, caught by Section 29(5) and (6) of the Electoral Act, his claim would still fail because he must establish the following to succeed on such allegation: (i) the existence of a document in writing; (ii) that the document was forged; (iii) that the forgery was by the person being accused; (iv) that the party who made it knew that the document or writing was false; and (v) the party alleged intended the forged document to be acted upon as genuine. … In addition, the false information must have been given by the candidate, with the aim to circumvent the constitutional requirements for the position being contested – AGI v PDP (2017) 17 NWLR (PT. 1595) 386. The Appellant failed to prove the requirements for establishing false information under Section 29(5) and (6) of the Electoral Act. By the way, the allegation is criminal in nature and must be established beyond reasonable doubt; this, the Appellant failed to do. The appeal was dismissed, with N6 million costs against the Appellant.
Appeal Dismissed.
Representation:
Dr Alex A. Izinyon, SAN with Bello K. Abu, Esq.; F.O. Izinyon, Esq.; Alex Izinyon II, Esq. and Kaiobari D. Oguru, Esq. for the Appellant.
Mr Ekeme Ohwovoriole, SAN; Mr Ayo Asala, SAN; with Marvin Omoregbe, Esq.; and Peace Kenoye, Esq. for the 1st Respondent.
Mr Damien D. Dodo, SAN with Emmanuel Ameh, Esq. and Justice Alili, Esq. for the 2nd Respondent.
Wole Esan, Esq. with Babatunde Ige, Esq. and Comfort Iorkyase, Esq. for the 3rd Respondent.
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