GOV SUSWAM’S CERT SCAM SUIT AT SUPREME COURT
By Terna Aper
Judicial Jettison Of 1999 Constitutional Requirement Of Educational Qualification And Adverse Consequences On National Electoral Processing
Appeal No SC/236/2013 is a pre-election suit from Benue state P.D.P 2011 primary/nomination between Terver Kakih-Appellant vs.PDP: INEC; WAEC and Gabriel Torwua Suswam as respondents pending before the Nation’s Supreme court.
The interest of this writer is not the perversity or injustice to any of the contestant to the office of the office of the Governor of Benue State but the constitutional infringement and the possible adverse consequences on the National Electioneering characteristics and processing from 2015 general elections.
This appeal has fifteen (15) grounds and eleven (11) issues formulated by the appellant. Whereas the 1st and 4th respondents (i.e. P.D.P. AND Gov Suswam) formulated four (4) issues for the court’s determination.
For space, the 101 pages of Appellant and P.D.P and Gabriel Suswam brief of arguments will not be verbatim published here but copious excerpts.
This writer was in Benue state and everywhere one turned, this suit was the topic of discussion and out of curiosity to know more, I tumble over court process and one issue of National importance or concern was clearly laying delicately within the pages of those court process.
That issue is “No 10 issue” of the Appellant, found at page 41 of the Appellant briefs of argument which was adopted on 14/04/2014 at the Supreme Court before the learned justice of Supreme Court led by Hon Justice Walter Nkanu Onnoghen. It borders on the import of one’s failure to submit to the electoral body, INEC, ones certificate as prescribed by the electoral act as amended.
At page 41 paragraphs 13.0 is the issue, it reads:
“Whether on the state of the pleadings and having regards to the totality of the materials before the lower court, the court was right in not holding that the 4th Respondent failed to meet the constitutional requirement to be elected into the office of the Governor of Benue State’’.
The Appellant, Terver Kakih’s submissions to the Apex court to support his argument on this issue is found from page 44-48 of his brief argument which are reproduced verbatim as follows:
We submit that the learned justices of court of Appeal were in grave error (regarding Governor Suswam’s non submission of certificate to INEC) when they held that, the appellant himself (Terver Kakih) did not submit his certificate to 2nd respondent and therefore what is good for the goose is good for the gender and went on to dismiss this issue.
At the close of pleadings, parties joined issues on disqualification and non-qualification of 4 Respondent. Paragraphs 31 and 32 of the Appellant statement of claim pleaded the constitutional disqualification and non-qualification of 4th Respondent while paragraphs 36 and 37 of Appellants witness statement on oath constitutes, inter alia the evidence in support thereof.
Appellant joined issues and fortified his pleading on this issue in paragraph 4 of plaintiffs reply to defense statement of 1st and 4th Respondents.
1st and 4th Defendants/Respondents filed their statement of Defense and in response to the allegation that the 4th Respondent presented a forged certificate or statement of WAEC Result to the 1st and 2nd Respondents; the 1st and 4th
Respondents averred in the paragraph 21, 22, 23 and 25 as follows:
“21 (iii) there was no need for the 4th defendant to present certificate as the form filled for election merely required an aspirant to state his/her qualification.
*(iv) The 4th Defendant did not present any certificate to INEC as falsely pleaded by the plaintiff. The form filled and submitted by the 4th Defendant through the 1st Defendant is pleaded.*
22 (iii) the 1st Defendant states that the 4th Defendant never presented any of his certificates to the 1st and 2nd Defendants…
23 The Defendants deny paragraphs 40, 41, 42, 43 and 44 of the statement of claim and state that the alleged results pleaded by the plaintiff do not belong to the 4th Defendant.
(i) He did not forge any of his certificate and all his certificates from primary, secondary, university, law school and postgraduate levels are genuine and legitimate certificates duly earned by him.
25 The 1st Defendant cleared the 4th Defendant after the 4th Defendant passed all the necessary tests laid down by the Gubernatorial screening committee set up by 1st Defendant”
Appellant joined issues with 1st and 4th Defendant/Respondents in plaintiffs reply to 1st and 4th Defendants statement of defense in paragraph 4 as follows:
“In reply to paragraphs 19, 20, 21, 22, 23, 24, 25 and 27 of the defense, the plaintiff contends that it is compulsory and necessary for aspirants and candidates to present their educational certificates to the 1st and 2nd defendants so as to ascertain the candidate educational and other qualifications/disqualifications and that 4th defendant did not pass the test of qualification since he failed to satisfy the provision of educational qualification stipulated by the 1999 constitution. And where the 4th defendant presented any (as in this case), he stands disqualified for presenting a forged certificate(s) contrary to the provision of the 1999 constitution (as amended).
1st and 4th Defendants/Respondents called one witness by name Bem Dzoho identified in proceedings as DWI.
Under cross examination, Mr Dzoho stated;
“All aspirants must be screened by the party before they go for primary election. It is mandatory for all aspirants to produce their certificates. The 4th Defendant was screened by the national Screening committee.”
INEC on it’s part merely stated in its denials of the issue in paragraph 4 of its statement of defense without particulars. In paragraph 5 (d) INEC merely stated that Suswam was screened and cleared by INEC having fulfilled all the constitutional requirements for election into the office of the Governor of Benue State.
We submit that clearly the both parties have corroborated on the issue of mandatory and compulsory requirement of presentation of certificates to INEC to qualify for elections to the office of Governor of the state.
The 1st and 4th Defendants /Respondent’s pleadings clearly raise the issue of non-qualification of 4 Defendant/Respondent and that is whether or not the 4th Defendant/Respondent possessed and presented the requisite educational qualification set out in section 177 (d) of the constitution of the Federal Republic of Nigeria 1999 (as amended) and this is the constitutional requirement the 2nd Respondent also referred to the electoral act as amended which states;
‘Part of constitutional requirement of a person or candidate seeking election into the office of the Governor of a state is that such person or candidate must be educated up to school certificate or its equivalent under section 177 (d) of the constitution of Federal Republic of Nigeria 1999 (as amended)’. Section 177 of the constitution of Federal Republic of Nigeria 1999 (as amended) provided as follows:
“177, A person shall be qualified for election to the office of a state if ____
He is a citizen of Nigeria
He has attained the age of 35 years
He is a member of a political party and is
Sponsored by that party
He has been educated up to at least school
Certificate level or its equivalent.
It is our submission that in order to prove that a candidate has been educated up to school certificate and fulfilled the educational requirement as provided in section 31(2) of Electoral Act 2011 (as amended) in conformity with 177 (d) of the constitution of Federal Republic of Nigeria 1999 (as amended) such candidate MUST produce and present evidence of certificate to INEC as rightly stated by DWI (Governor Suswam’s witness) in cross examination.
It is our further submission that by the provision of section 182 (1) (j); presentation of certificate to INEC is a constitutional requirement that cannot be waved away for any candidate seeking election to the office of the governor of a state. This is mandatory as DWI rightly declared.
Section 182 (1) (j) provide as follows:
No person shall be qualified for election to the office of governor of a state if:
(j)He has presented a forged certificate to INEC.
We submit that, had the constitution of the Federal Republic of Nigeria 1999 (as amended) not required presentation of certificate, the words: “present forged certificate to INEC” would not have been used in section 182 (1) (j).
The provision of both sections 177 and 182 must be read together on issue of qualification and disqualification in the instant case. The import of these two sections of the constitution is that, where a candidate present a certificate to INEC and such certificate is forged in attempt to prove that he is qualified and fulfilled requirement in section 177 (d) to contest election to the office of the governor of a state, such candidate will be disqualified under section 182 (1) (j)
The presumption under section 167 (d) of the Evidence Act 2011 is that any candidate who failed, refused or neglected to present his /her certificate to INEC as in the instant case, Suswam, withhold it for fear of being challenged under sections 31 and 138 of the Electoral Act, and disqualified under section 182 (1) (j) of the constitution of the Federal Republic of Nigeria 1999 (as amended), it would be deemed that he does not possess it or that it would be unfavorable to such candidate if he presented such a certificate.
It is instructive and worthy to point and that section 318 of the constitution of the Federal Republic Nigeria 1999 (as amended) confers on INEC power to accept certificates presented to it by candidates.
To sum up, it is our contention that section 177 (d) requires candidates to prove that he is educated up to school certificate. Section 182 (1) (j) requires candidates to present their certificate to INEC and section 318 confers on INEC powers of acceptability of certificate so presented by candidates. All sections referred to here are of the constitution of the federal Republic of Nigeria 1999 (as amended).
We strongly submit that, it is only through the process of presentation of certificates and other relevant requirements as stipulated in section 177 of the constitution of the Federal Republic Nigeria 1999 (as amended) that INEC and the court can determine whether a candidate has not got all the requirements and qualifications prescribed by the Electoral Act and the constitution of the Federal Republic Nigeria 1999 (as amended).
We contend that Suswam, who purchased the INEC Gubernatorial nomination form, was issued with those forms in which part IV paragraph 13(f) speaks to possession and education up to school certificate level or its equivalent and fulfillment of constitutional qualification; the constitutional requirement being education to school certificate or its equivalent (i.e. section 177(d));
Same Suswam who, aware of the requirement in section 31 of Electoral act; by
virtue of been issued and having filled INEC form (CF00) which required two set of document be submitted to INEC (namely (i) list or information, impliedly bio-data and certificates (ii) accompanying affidavit showing that the candidate fulfill constitutional requirements; same Suswam who was subpoenaed by the court to produce his certificate but refused to produce; failed and refused to present his certificate to INEC and above all admitted he did not submit his certificate to INEC as a constitutional requirement for candidate seeking to be elected to the office of the governor of a state.” Most definitely has no certificate or has something to hide.
On their part the 1st (P.D.P) and 4th (Gov Gabriel Suswam) Respondent’s had this to say before the Supreme court regarding the fact that Mr Kakih seeks to hold their pleading of non submission of certificate against them. This is reproduced here verbatim as follows:
Appellant is heavily relying on paragraphs 21,22 ,23, and 25 of the 1st and 4th Respondents’ Statement of defence claiming same to be an admission thus raising a prima facie case of disqualification. This cannot be true. We submit that Appellant can neither raise a completely new case from the defence, nor on his reply and final written address. Parties cannot deviate from their case as made out on pleadings. Appellant cannot be allowed to argue a point that is not in issue or that does not arise from the pleadings or from the dispute between the parties. Parties and court are bound by the pleadings of parties before the court. We refer your Lordships to the case of Okweiiminor vs. Gbakeji (2008) 5 (NWLR (Pt.1079) 172; Executor of the Estate of Gen. Sani Abacha (Deceased) vs. Eke-Spiff and ors (2009) 7 NWLR (pt. 1139)97, Yusuf vs. Adegoke (2007) 11 NWLR (Pt. 1045)332.
4.95: We urge this Hon. Court to hold that this new issue of non-presentation of certificate having not been supported by pleadings and evidence goes to no issue. See Sodipo ve Ogidan (2008) 4 NWLR (pt. 1077) 342 at 368. We submit that this Hon. Court has no business with the new issue of non-presentation of certificates to 2nd Respondents raised in the Appellant reply and final written address at the court of first instance. Appellant raised this new issue as a drowning man in a sea who looks for anything to hold.
We therefore urge your Lordships to discountenance appellant’s arguments under Appellant’s issue 10 in paragraphs 13.1-13.26 at pp.41-48 of his brief urging your Lordship to disqualify the 4th Respondent on the ground of non-presentation of certificate to the 2nd respondent, as it is an overreaching argument and will amount to springing surprises and an abuse of 1st and 4th respondents right to fair hearing which will occasion a miscarriage of justice on 1st and 4th respondent whether the issue is a subject matter outside the purview or the restricted jurisdiction conferred by s 31 (5).
Be that as it may, we submit that even if this Hon. Court, like the courts below will want to travel on the luxury of interest of justice to examine the case being made outside pleading and the ambit of S.31 (5) of the Electoral Act as amended, which trip we submit should be avoided, this Hon. Court will still find that Appellant failed to prove his case. The case Appellant is attempting feebly to raise vides his reply pleading and address of counsel is that, having regards to section 182 (i) (j) and 177 (d) of the 1999 constitution the 4th respondent is necessarily required to present his certificate to the 1st and 2nd respondent in order to prove that he was qualified to contest the election but where he failed to present same he is disqualified under S. 177 (d) of the Constitution. In other words, the 4th respondent was not qualified to contest by virtue of non-presentation of his certificate.
In resolving this issue as the court of first instance and intermediate court of Appeal, the courts below held concurrently that the appellant’s challenge of the constitutional qualification of the 4th respondent failed because the evidence adduced by the appellant’s witness is unreliable, improbable and inconclusive. It is our submission that, the courts below couldn’t have decided otherwise having regards to the state of pleadings and evidence before them.
4.98: In the first place, the courts below recognized the fact that, the issue of non-qualification of 4th Respondent by virtue of non-presentation of certificate was never the case of the appellant from the beginning. Nowhere in the statement of claim was the issue pleaded. The appellant as plaintiff in the lower court only came up with the issue in his cunning attempt to fish for evidence based on the defence of the 1st and 4th defendants as reproduced at p.24 paragraph 7.03 of the appellant’s brief of argument and as can be found in paragraph 13.3 pp. 42 of the appellant brief of argument before this Hon. court. The contention of the Appellant that facts admitted need no proof does not avail him here. 1st and 4th Respondents’ paragraph 21, 22, 23 and 25 of statement of defence cannot be said to be an Admission. There are rather specific denials of the allegations in the Appellant’s statement of claim and can therefore not constitute an admission as contended by the Appellant. The case on Bello vs. Emeka 1981 SC 101 INEC vs. Oshionhole & Ors (2009) 4 NWLR (1132) 607 at 6621 Eigbe vs. U.T (2008) 13 NWLR (998) 517 are all inapplicable to the instant case.
However, in their magnanimity, the courts below combed through the sparse evidence before them but found nothing in support of those allegations and concurrently held that there was no evidence that the 4th Respondent was constitutionally disqualified. The contention of the appellant that having regards to section 182 (1) (j) and 177 (d) of the 1999 constitution the 4th respondent is necessarily required to produce his certificate before 1st and 2nd respondent in order to prove that he was qualified to contest election otherwise, he is disqualified under S.177(d) of the constitution and that by S.167(d) of evidence act, 2011, the failure of the 4th respondent to produce his certificate before 1st and 2nd respondent is fatal because if produced it would have been unfavorable to him is misconceived as submission or presentation of certificate is not the requirements of S.177 (d) of the constitution a fortiori the gubernatorial screening process. All that was required was to fill your qualification in the form and to swear to a verifying affidavit that the information contained in form CF001 was true and which takes away the necessity of presentation of the actual certificated to the 1st and 2nd respondents.
Indeed, the process of screening which the appellant and 4th respondent went through with the 1st respondent which is similar in form with the 2nd respondent did not require presentation or submission of certificate. All that was required was for a candidate to fill your qualification in the candidates nominations form, admitted in evidence as exhibit C and D and to swear to a verifying affidavit that the information contained in the form is true and not to present the actual certificate to the 1st and 2nd respondents. Exhibit C and D are similar in form with INEC form CF001.
Under cross examination when appellant was confronted with the said Exhibit C and D, appellant’s nomination form which is similar in form with INEC form CF001 and which the 1st respondent used in screening the 4th respondent and the appellant, stated in answer to the question whether he the appellant attached his own certificate to the nomination form that he did not attach his certificate to his party nomination form and that the same procedure of not attaching certificate to nomination form applied to all the candidates. Appellant admitted that presentation or submission of certificate to 1st respondent was not a requirement for the purpose of the screening see page 711 LL 6-9 of the record.
In their finding, the learned justices of the court below, however, erroneously referred to exhibit C and D as INEC form CF001 and on the basis of which the learned justices of the court below held that what is good for the goose is good for the gander and which error the appellant is making heavy weather. We submit that it is not every error or mistake result in the reversal of the judgment. The erroneous references to Exhibit C and D as form CF001 do not affect the correctness of the conclusion reached by the court below. See Fadlallah Vs Textiles Ltd ( supra). In the first place, these forms are substantially the same which merely required the candidate to fill his bio-data including his educational qualification and accompany same with a verify affidavit to the effect that the said information on the forms were true thereby taking away the necessity of presenting same. Most importantly, there was no evidence of non presentation of certificate having not been pleaded, evidence could not have been led and if led goes to no issue.
In any case, we submit that it is not the requirement of S. 177 (d) for the candidate to necessarily present the certificate to qualify under S. 177 (d) of CFRN as contended by the appellant but it is enough that he is educated up to school certificate level. By S.177 (d) a person shall be qualified for election to the office of governor of a state if:
A ………………………..
B …………………………
C ………………………….
D. He has been educated up to at least school certificate level or its equivalent.
By S. 318 (1) school certificate or its equivalent means.
A …………………………..
B. educated up to secondary school certificate level.”
The entire legal jargon from the contestant quoted above can be summarized in few paragraphs; thus:
The appellant Terver Kakih is contending that Governor Gabriel Torwua Suswam and P.D.P in their joint statement of defence in this suit stated that Gov Suswam did not present to INEC his certificate and therefore Governor Gabriel Suswam was not qualified to contest and occupy the office of the Governor of Benue State, having regard to the provisions of sections 177 (d); 182(I) (j) and 318 of the 1999 constitution of F.R.N;
Governor Suswam’s submission is that the combined reading of sections 177(d);182(1) (j) and 318 of the 1999 constitution of the F.R.N does not require candidates to elections to the office of the Governor to present their certificate to INEC as a proof of qualification to contest and occupy the office of the Governor of a state.
Page 169 of the 1999 constitution of Nigeria as amended has the following provision on certificate under S 318:
“School certificate or its equivalent” means.
A secondary school certificate or its equivalent or grade (ii) teachers certificate, city and guilds certificate or
Education up to secondary School certificate level or
(I) attendance of courses and training in such institutions as may be acceptable to INEC
any other qualification acceptable by INEC
To this writer the operational words in S.177 (d) are secondary school certificate S.182 (1) (j) is presented to INEC while S.318 (a) (b) (c) (d) is school certificate or its equivalent grade(ii) teachers certificate, city and guilds acceptable to INEC.
A critical glean from the gamut and gambit of both parties crystallized salient and sensitive issue of National importance with the possibility of changing the processing and characteristics of Electoral management in Nigeria and also treading and trampling on the 1999 constitution of this great country.
As one further takes a deep gleam from these submissions of the contestants, highly sensitive issues or question come to mind. Questions like; is educational or certificate presentation to INEC truly, properly and legally not required as a proof that a candidate conforms to section 177(d) of the 1999 constitution as amended; why does section 182(1) (j) have the words present a forge certificate to INEC? Why does section 318 confer certificate acceptability on INEC, if such certificate is not to be presented to INEC?
This writer hopes that the Supreme Court will not shy away from determination of these issues head on. Shying away and taking side with the submission that the issue of non qualification by non presentation of certificate to INEC by Gov Gabriel Suswam was not in pleadings of the parties will set a bad precedent that will not help this nation.
This writer sought views and opinion of legal luminaries and some senior advocates of Nigeria (S.A.N) on what constitute pleadings. They all concurred that pleadings begins with plaintiff statement of claim and statement on oath, defendants defence statement and the reply of plaintiff to defendants defence statement closes pleadings.
In light of the concurred position by lawyers and considering the above quoted plaintiffs statement of claim/ on oath; Respondents joint defence statement and plaintiff reply to the joint statements of defence, i believe raises this issue. The Supreme Court has no option but to determine this issue.
Be it as it may, Gov Suswam at page 45 paragraphs 4:97 admitted that the Appellant attempted to feebly raise this issue under reply pleadings…
Another critical issue for the Apex court to determine is whether INEC acted properly, rightly, legaly and constitutionaly to screen and pass a candidate to stand election in Nigeria without such candidate proving through certificate presentation to her (INEC) that such candidate conforms to the provision of the Electoral act and the 1999 constitution of FRN.
This again brings the integrity of the electoral umpire to question even at electoral litigation.
In paragraph 5 (d) of INEC statement of defence, INEC merely stated that Gov Suswam was screened and cleared, having fulfilled all constitutional requirements for election into the office of the Governor. As to whether Gov Suswam presented his certificate to INEC; INEC remains unfortunately, mute.
As the nation wait for the apex court to determine this issue, this writer hopes that the verdict will not render certificates irrelevant in Nigeria electoral characteristics.
This is where national interest is at stake. Should the apex court decide that the combined section 177(d), 182(1) (j) and 318 of the 1999 constitution of FRN does not make presentation of certificate to INEC a requirement to contest election in Nigeria, then certificates are rendered no use in electioneering in Nigeria.
The fear of this writer that the judiciary may Jettison educational requirement as provided in section 177 (d) of the 1999 constitution of FRN drawing its source from the decision of the Federal High court presided by Hon Justice M.I. Awokulehin-(The Judge who had earlier cleared Gov Ibori of all charges but same Gov. was convicted on same charges in London.
Hear Justice Marcel I. Awokulehin’s ruling in this suit and his judgment at page 89 on this issue:
“In the light of the evidence adduced, learned counsel for plaintiff submitted that section 177(d) of the 1999 constitution as amended requires a candidate to produce evidence of his qualification by presenting his certificates to INEC and that where such certificates, as in the instant case is fake or forge, such candidate is liable to disqualification under section 182(1) (J) of the constitution. Also that the refusal to present the certificate by 4th defendant was in fear of being challenged under section 31 and 138 of Electoral Act 2011 as amended and eventually disqualification under section 182(1) (J) of the constitution and therefore urge this court to invoke section 167(d) of the evidence Act 2011.
As beautiful and welcoming to the ears as this submission is, I am not persuaded to toe that line. Since the evidence on which they are predicated are manifestly unreliable, improbable and inconclusive”.
Now read the Makurdi division of the court of Appeal’s judgment on the issue;
“Now the Appellant, having admitted that he himself did not submit any certificate to 2nd respondent, why is he arguing strenuously that the failure of the 4th respondent to have presented his certificate to 2nd respondent meant that he had forged it. I think as they say, what is good for the goose is also good for the gander.
This last issue, as can be clearly seen, does not in any way avail the appellant. I accordingly resolve it against him”
A clear glean on the status of parties shows that 2nd respondent is INEC. The Appellant’s name was not submitted to INEC. Only candidates name sent to INEC by political parties submit certificate to INEC. How did the court of Appeal expect the Appellant whose name was not submitted to INEC to submit his certificate to INEC in the circumstance?
The court of Appeal further noted;
“I wish to note that exhibits referred to by the Appellant as C & D above were INEC form CF001….”
An examination of exhibits shows that exhibit C & D are P.D.P forms. Exhibit C is P.D.P. Expression of interest to contest election while exhibit D is P.D.P nomination form containing list of P.D.P. members that nominated the Appellant to contest the party primary.
In fairness Governor Suswam admitted at page 47 paragraph 4.103 the error by the Court of Appeal as follows:
“In their findings, the learned justice of the court below, however erroneously referred to exhibit C & D as INEC form CF001”
Apparently the Court of Appeal wrote its judgment in a hurry, messed around and twisted up evidence, facts and even exhibits just to give judgment to Governor Suswam not minding the constitutional consequence their judgment has on the Nation’s electoral process.
The Nation await the apex court to decide whether a mix up and mess about in the judgment, where wrong exhibits were deliberately used in judgment to cause intended miscarriage of justice to a party will be left to stand.
Lastly from the submissions in their briefs of argument to the supreme court, it appeared as if P.D.P. has discarded education qualification as a requirement for eligibility at least between its two contestants; where Governor Gabriel Torwua Suswam stated in paragraph 4.102 that the appellant, in answer to a question during cross examination stated that certificate presentation was not a requirement for candidates. If this submission is true then P.D.P. was most certainly in infringement of the 1999 constitution on educational requirement for eligibility. Here too the Supreme Court will determine whether that policy of P.D.P. is legal.
Above all the supreme court will also determine whether INEC can also dispense with certificate presentation by candidates in face of sections 177(d) 182(1) (J) and 318 of the 1999 constitution. This will definitely set a dangerous precedent not only for future elections but for persons seeking employment and other issues that require certificate qualification.
Aper writes from Makurdi
