A Jurisprudential Analysis Of The Supreme Court Judgment On Bayelsa Governorship By Seprebofa M. Oyeghe

The Case against Biobarakumo Degi-Eremienyo

The Supreme Court on February 13, 2020 delivered its judgment on the Bayelsa Governorship Petition.

The brief fact is that Mr. Eremienyo upon his nomination as the running mate of David Lyon Pereworimin, duly filled the INEC Form CF001. Same was duly sworn by him and consequently published.

The Appellants pursuant to Section 31 (5) approached the Federal High Court, claiming that the information contained therein are false on grounds that:

The name in his First School Leaving Certificate issued in 1976 was DEGI, BIOBRAGHA;

1. His WAEC/GEC, 1984 bears the name ADEGI BROKUMO;

iii. His First Degree bears the name DEGI BIOBARAKUMA WANGAWA;

1. In his Affidavit of Correction and Confirmation of Name sworn to 9th August, 2018 he asserted that his correct name is BIOBARAKUMA DEGI;
2. In another Affidavit of Regularisation of Name sworn to on 18th September, 2018 he averred that his correct name is BIOBARAKUMA WANAGHA DEGI ERKMIENYO;
3. In another Affidavit of 18th September, 2018 deposed before an unnamed Notary Public on a letter Heading: Stanley Damabide & Partners he averred that while registering for WASCE examination “the alphabet “A” was inadvertently added to (his) surname to read thus – Biobarakuma Wanagbe Adegi and same captured in the Certificate he obtained therefrom. (The 1984 WAEC/GCE however bears the name ADEGI BIOBAKUMA – not Biobarakuma Wanagbe ADEGI);

vii. In the said Affidavit of 18th September, 2018 he further averred that later in time he took Chieftaincy title and by Nembe Custom he added Eremienyo to his surname and his full name reads – BIOBRAKUMA WANAGHA ADEGI-EREMIENYO;

viii. On the Statutory Declaration of Age dated 31st July, 1990 it was declared that the 1st Respondent bearing the name BIOBARAKUMA DEGI was born on 22nd February, 1959. The deponent Henry Vanman, described himself as the uncle of Degi-Eremienyo;

1. On his form CF001 the 1st Respondent gave his name as DEGI-EREMIENYO, BIOBARAKUMA WANAGHWA;
2. By the Change of Name published in Chronicles Newspapers of 20th July 2018 the 1st Respondent announced the change of his name from BIOBARAKUMA WAMAGHA DEGI to BIOBARAKUMA WANAGHA DEGI-EREMIENYO.

Courts Decision in Degi’s Case

The Supreme Court in its judgment of February 13, 2020 held that “there was no nexus between the name of the 1st Respondent on his Form CF001 and the various Certificates (including the First Degree Certificate from Rivers State University of Science and Technology, NYSC Exemption Certificate of 2nd October, 1990, the Award of Masters in Business Administration (MBA) Degree dated 14th February, 2002; and that the 1st Respondent’s name in Form CF001 is not the same name on the Statutory Declaration of Age of 1st July, 1990.” And consequently ordered the INEC to withdraw the Certificate of Return issued to the 2nd and 1st Respondents and issue Certificate of Return to the candidate who had the highest number of lawful votes cast in the Governorship election and who also had the requisite constitutional (or geographical) spread.

The apex court held that it is only the authorities that issued the First School Leaving Certificate issued in 1976, and the West African Examination Council in 1984 that can effectively change the names appearing thereon, and that no affidavit of Correction or Regularisation can effectively change the names.

The Case against Muhammadu Buhari

In Buhari’s case, it was contested that the the 2nd Respondent (Muhammadu Buhari) submited to the 1st Respondent (INEC) an affidavit containing false information of a fundamental nature in aid of his qualification for the said election. The Petitioners claimed that Buhari did not attend the schools he claimed in his FORM CFOO1 and that those schools were not in existence at the mentioned dates.

In Buhari’s case, the President as the 2nd Respondent deposed to an Affidavit on 24th November, 2014 that his certificates as filed in his Presidential Form are with the Secretary of illitary Board as at the time of his deposing to the Affidavit. See Paragraph 2 of the said Affidavit which reads:

“That all my Academic qualifications documents as filled in my presidential Form, President APC/001/2015 are currently with the Millitary Board at the time of this Affidavit”

This he repeated in his Form CF001. This position was denied by the secretary of the Millitary Board, claiming same to be false. Sadly, they failed, refused or neglected to subpoen the Secretary of the Army Board to produce that “long searched for certificate” Worthy to note that Public Statements were made by the Secretary of Millitary Board both in electronic and print media were tendered and admitted.

Mr. President in his affidavit stated that he attended “Elementary School Daura and Mai Aduwa”, and also Middle School Katsina in 1953. The existence of these Institutions was refuted by the Petitioners who contended that by 1953, the middle school system had been abolished in Northern Nigeria.

Also, the Certificate tendered by Buhari was also replete with discrepancy in the name as MOHAMMED and “MUHAMMADU”.

Courts Decision in Buhari’s Case

In resolving the issue of whether President Buhari possess the requisite educational qualification, both the Court of Appeal and Supreme Court held that there was no evidence to disclaim or disprove that the 2nd Respondent (Muhammadu Buhari) lied that he went to Primary School, Secondary School and that he joined the Army in 1962.

It was held that the names “Muhammed Buhari”, “Mohammed Buhari” all refer to, identify and belong to the 2nd Respondent in respect of whom they were issued.

There was nothing before the court to show that the names “Muhammed Buhari”, “Mohammed Buhari” all refer to same person.

Proving the allegation of forgery.

While I am mindful of Section 182 (1)(j) of the 1999 Constitution as amended, which provides that no person shall be qualified for election to the office of the Governor of a State if he has presented a forged certificate to the Independent national Electoral Commission. Also the court in Degi’s court explained “forged” to mean “fabricating, framing, falsifying, inventing a false attestation, vouching falsely”.

The Blacks Law dictionary defined forgery as “the act of fraudulently making a false document, or altering a real one to be used as it it is genuine”.

Section 465 of the Criminal Code Act provides the definition of forgery thus: “A person who makes a false document or writing knowing it to be false and with intent that it may in any way be used or acted upon as genuine.

Hence to sustain the claim of forgery, the Petitioner must prove beyond reasonable doubt that:

1. That the certicates/credentials bearing various names NEVER emanated from those institutions, or
2. That the certificates/credentials emanated from those institutions but that they have been altered, or
3. That he did held these certificates/documents out knowing them to be forged.
4. That he did presented them to INEC knowing that they would be used fraudulently or dishonestly as genuine. See also Arebi v. Gbabijo (2010) All FWLR (Pt. 527) 710 CA.

In Degi’s case, the claim of forgery could not have been sustained since he only deposed to affidavits confirming the various names he bear. Also, there was nothing to show that those certificates or credentials NEVER emanated from those institutions or that Degi never attended those Institutions. Moreso, there was nothing to show that the certificates were altered.

Furthermore, since it the law that presentation of certificates is NOT a criteria for qualification to contest election, and mere affidavit that one is educated up to school certicate or its equivalent, it is safe to say that Degi never presented those certificates to INEC knowing that they would be used fraudulently or dishonestly as genuine since his eligibility may not be affected with or without those certificates.

Sentiment should command no place in judicial deliberations. A court of law is court of cold facts and law and not a court of fiction. Fiction belongs to Alice in Wonderland. See The State v. Collins Ojo Aibangbee (1988) 3 NWLR (Pt. 84) 548

It is trite law that if the commission of a crime is in issue, it must be proved beyond reasonable doubt. See Section 135 (1) of the Evidence Act. Once allegation of crime is imputed as in the instant case that the certificates presented to INEC were forged, such claimant has the additional duty of proving his allegations beyond reasonable doubt.

The provisions of the Electoral Act 2010 cannot subvert the clear provisions of section 131, 137 and 318 (1)(d) of the Constitution. Any allegation of giving false information in the Affidavit submitted to INEC must be a false information of a fundamental nature that breaches the provisions of section 131, 137 and 318 (1)(d) of the Constitution as amended. See Saidu v. Abubakar (2008) 12 NWLR (Pt 1100) 201.

Where one contends that a certificate is fake or forged, beyond rhetorics, such a party has a onerous task to procure and tender from the various institutions that issued the certificates, sufficient proof that the certificates are indeed forged or fake or how the original certicates from those institutions looks like. Sadly this was not done in Degi’s case

Is Degi qualified and eligible even without those certificates?

The Supreme Court in its judgment of February 13, 2020 held that “there was no nexus between the name of the 1st Respondent on his Form CF001 and the various Certificates. The question that flows is whether Degi is qualified and eligible to contest even without those certificates? This by the legion of authorities is answered in the affirmative.

Section 177 of the Constitution provides that a person shall be qualified for election to the office of Governor of a State if:

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

By Section 318, “School Certificate or its equivalent” means

(a) a Secondary School Certificate or its equivalent, or Grade II Teacher’s Certificate, the City and Guilds Certificate; or

(b) education up to Secondary School Certificate level; or

(c) Primary Six School Leaving Certificate or its equivalent and –

(i) service in the public or private sector in the Federation in any capacity acceptable to the Independent National Electoral Commission for a minimum of ten years, and

(ii) attendance at courses and training in such institutions as may be acceptable to the Independent National Electoral Commission for periods totalling up to a minimum of one year, and

(iii) the ability to read, write, understand and communicate in the English language to the satisfaction of the Independent National Electoral Commission, and

(d) any other qualification acceptable by the Independent National Electoral Commission;

Hence, anyone who possess any of these or satisfies these requirements is eligible to contest. Worthy to note that Chief (Sen) Degi had served in various capacities in the past including serving as local government Chairman. Commissioner etc. and his meeting those requirements is not in issue.

In Bayo v. Njidda (2004) 8 NWLR (Pt 874) 544 at 630, the Court of Appeal, then the apex court on Election Petition Assembly/Governrship and Legislative Houses Election Tribunal had this to say:

“In otherwords, as regards a secondary school certificate examination; it is enough, in my view that one attended School certificate level i.e without passing and obtaining the certificate”

By the combined reading of Section 177(d) and 318 (b) of the Constitution, what is important is whether the candidate has been educated to Secondary School certificate level.

By Terver Kakih v PDP & Ors(2014) 15 NWLR (Part 1430) 374 at 424, it was held: that submission or presentation of certificate is not the requirement of S. 177(d) of the Constitution as regards the Gubernatorial screening process. The process of screening which the appellant and 4th respondent undertook with the 1st respondent requires the candidate to fill his qualification in the form and to swear to a verifying affidavit that the information contained in Form CF001 was true. This takes away the necessity of presentation of the actual certificates to the 1st and 2nd respondents.

Hence, the mere submission of additional certificates which was only aimed at erring on surplusage cannot suddenly crystalize to be fundamental except where the issuing Institution confirm the certificates to be forged. Moreso, there was nothing to prove that the certificates were forged. The multiple names on the certificates, without more, could at best only raise some suspicion. And Suspicion no matter how strong cannot amount to evidence beyond reasonable doubt.

Seprebofa M. Oyeghe is an Abuja based Legal Practitioner and can be reached via: [email protected]