P.D.P V. Degi-Eremienyo: On who can sue on allegation of presentation of false information to electoral body by candidate. An insight into the decision of the Supreme Court therein.

Citation: (2021) 9 NWLR PT. 1781 AT 274.

PARTIES IN FULL:

  • 1. PEOPLES DEMOCRATIC PARTY [PDP]
  • 2. SENATOR DOUYE DIRI
    [Governorship Candidate of PDP in the November 16, 2019 Bayelsa State Governorship Election]
  • 3. SENATOR LAWRENCE EWHRUDJAKPO
    [Deputy Governorship Candidate of PDP in the November 16, 2019 Bayelsa State Governorship Election].
  • V.
  • 1. BIOBARAKUMA DEGI-EREMIENYO
    [APC Deputy Governorship Candidate for Bayelsa State]
  • 2. LYON DAVID PEREWORIMIN
    [APC Governorship Candidate for Bayelsa State]
  • 3. ALL PROGRESSIVES CONGRESS [APC]
  • 4. INDEPENDENT NATIONAL ELECTORAL COMMISSION [INEC]

Courtesy: Moruff O. Balogun, Esq.

Summary of facts:
The 2nd respondent won the nomination to contest the Governorship election in Bayelsa State on the platform of the APC (3rd respondent). He in turn nominated the 1st respondent as his running mate. Both the 2nd and the 1st respondents were APC candidates for the offices of Governor and Deputy Governor of Bayelsa State respectively. It was a joint ticket on the platform of the APC. The APC, in compliance with section 31(1) of the Electoral Act, 2010 (as amended), submitted the names, personal information and particulars of the 1st and 2nd respondents to INEC in INEC Form CF001 for each of the respondents. The 1st Respondent’s Form CF001 was duly sworn to by him, and it was published.

The appellants, pursuant to section 31(5) of the Electoral Act, as amended, commenced an action at the Federal High Court claiming that the information supplied by the 1st respondent as contained in Form CF001 was false. They asked the Federal High Court to invoke section 31(6) of the Electoral Act to disqualify the 1st respondent (and consequentially the 2nd respondent) from contesting the election. They predicated their action on the fact that the 1st respondent presented false information in his Form CF001 to the 4th respondent in support of his nomination. They alleged, inter alia, that in his sworn Form CF001, the 1st respondent used different names in different educational certificates other than his name Biobarakuma Degi-Eremienyo.

The name in his First School Leaving Certificate issued in 1976 was Degi, Biobragha: his WAEC/GCE, 1984 had the name Adegi Brokumo; First Degree – Degi Biobarakuma Wangawa. The 1st respondent tried several times in 2018 to correct the anomalies in his names through several sworn affidavits of “correction and confirmation of name”, “regularisation of name”, and “addition of name”. It was shown that in a statutory declaration of age made in July 1990, deposed by his uncle, that the 1st respondent’s name was Biobarakuma Degi. By a change of name published in “The Chronicle” newspaper of 20th July 2018, the 1st respondent announced the change of his name from Biobarakuma wamagha Degi to Biobarakuma wanagha Degi-Eremienyo. However, on the 1st respondent’s Form CF001, he gave his name as Degi-Eremienyo Biobarakuma Wanaghwa.

It was on the above named facts (admitted by the 1st respondent), that the appellants sought the Federal High Court to declare that the 1st respondent gave false information, by the fact of his multiplicity of names, to INEC. The issue turned largely on the interpretation of documentary evidence. The respondents raised a two pronged preliminary objection to the suit on grounds that the suit did not disclose a reasonable cause of action and that the originating summons was a wrong procedure to commence the suit.
The Federal High Court, in its final judgment in which it included its decision overruling the respondents’ preliminary objection, agreed with the appellants that the 1st respondent in his form presented to INEC contained false information. It therefore invoked section 31(6) of the Electoral Act, as amended, and disqualified the 1st respondent (and consequentially the 2nd respondent) from contesting the Governorship election in Bayelsa State. The respondents were aggrieved at the decision of the trial court. The APC on one hand and the 1st and 2nd respondents on the other, filed two separate notices of appeal to the Court of Appeal.

The Court of Appeal allowed their appeals, agreeing with the respondents herein, inter alia, that the suit at the trial court did not disclose any reasonable cause of action to warrant the disqualification of the 1st respondent; that the originating summons procedure was not appropriate for the suit; that the allegation that the 1st respondent presented false information to INEC in his form CF001, duly vouched and verified on oath, was essentially an allegation of crime (perjury) which requires proof beyond reasonable doubt and it was not proved beyond reasonable doubt.
The appellants aggrieved by the decision of the Court of Appeal appealed to the Supreme Court

Held: Unanimously allowing the appeal. The judgment of the Court of appeal was set aside; while that of the trial Court was reinstated.
The following issues were raised and determined by the Supreme Court:

On who can sue on allegation of presentation of false information to electoral body by candidate –

Section 31(5) of the Electoral Act complements section 182(1)(j) of the 1999 Constitution, as amended. It empowers any person who has reasonable grounds to believe that any information given by a candidate, like in an affidavit, i.e. Form CF001 is false, to file a suit at the Federal High Court or the High Court of a State or of the Federal Capital Territory against such person, and seek a declaration that the information contained in the affidavit is false. The sanction for presenting to Form CF001 containing false facts about the personal particulars or information of the candidate, by virtue of section 31 (6) of the Electoral Act, is disqualification of the candidate from contesting the election.

In the instant case, the Court of appeal was wrong in holding that the appellants did not establish that 1st respondent’s Form CF001 presented to INEC contained materially false facts and information regarding personal particulars of the 1st respondent. The implication was that the joint ticket of the 1st and 2nd respondents which was sponsored by the 3rd respondent, was vitiated by the disqualification of the 1st respondent. With both candidates disqualified, they were deemed not to be candidates at the Governorship election conducted in Bayelsa State.

On when appropriate to commence action by originating summons –

Facts that are not in contention is the basis for proceedings in originating summons. In the instant case, the Court of Appeal erred when it found that the facts on which the originating summons rested and was premised on were in conflict.
They were not. The trial Court found correctly that the facts were not contentious and that it was merely called upon to decide from the non contentious facts whether the 1st respondent had falsely laid claims to those exhibited documents and the various names appearing therein.

Per EKO, J.S.C.:
‘The trial Court correctly found at pages 554 that “the entire proceedings here in my opinion is based on documentary evidence”. The finding of fact was neither challenged at the lower court nor disturbed by it. The appellants, as the plaintiffs, merely asked the trial court in their originating summons to interpret the documentary evidence viz-a-viz the claim of the 1st respondent that the various names on those documents did not belong to the 1st respondent and that he had no nexus with them as he had falsely claimed in his Form CF001. The respondents, as defendants, particularly the 3rd and 2nd respondents did not dispute those documents. They in fact admitted that the documents belong to the 1st respondent and that he owned those multiple names appearing variously on the said documents.”

On what amounts to presenting forged certificate to electoral body for purpose of election and effect thereof –

By virtue of section 182(1)(j) of the 1999 Constitution, as amended, no person shall be qualified for election to the office of Governor of a State if he has presented a forged certificate to the Independent National Electoral Commission.
The ‘certificate’ therein is in small letters. It bears its ordinary natural meaning. It is used as a noun that derives from the verb ‘certify’ which means to attest, testify, vouch, ascertain, verify. The word “forged” qualifies the word “certificate” in the provision. The word forged is used in the context of fabricating, framing, falsifying, inventing a false attestation, vouching falsely.

On whether fraudulent for one person to bear different names –
It is clearly fraudulent for one person to allegedly bear several names that he uses variously, to suit changing environments.

Per EKO, J.S.C.:
“At page 132 is the Statutory Declaration of Age deposed to by one Henry Vanman, an uncle of the 1st respondent. It was claimed therein that the name of the 1st respondent as at 31st July 1990, was Biobarakuma Degi. However, in the purported affidavit of regularization of name deposed to by the 1st respondent on 18th September, 2018 before a faceless Notary Public the 1st respondent averred that “my name at birth is Biobarakuma Wanagagha Degi”.
His uncle in 1990 gave his name Biobarakuma Degi in the Statutory Declaration of Age. The 1st respondent also claimed in the said affidavit of regularisation of name that “while registering for my West African School Certificate Examinations the alphabet ‘A’ was inadvertently added to my surname to read thus: Biobarakuma Wanagagha Adegi and same was captured in the certificate obtained therefrom”. He lied on this. The WAEC General Certificate of Education, at page 61, bears Adegi Biobakuma and not Biobarakuma Wanagagha Adegi.

The 1st respondent did not explain why in 1990, in spite of the alleged error in 1984, Rivers State University of Science and Technology still inscribed the name: “Degi, Biobarakuma” on the certificate at page 62 and not Biobarakuma Wanagagha Degi, his name at birth or Biobarakuma Degi appearing on his 1990 statutory declaration of age. It is clearly fraudulent for one person to allegedly bear several names that he uses variously, to suit the changing environment.

Clearly, the lower court erred when it held that the affidavit of correction and confirmation of name sworn to by the 1st respondent on 9th August, 2018 and the Chronicle newspaper advertorial placed by the 1st respondent himself, explained the discrepancies in all the information certificates and documents. For instance, neither the said affidavit nor the advertorial explained the name Biobarakuma Degi on the statutory declaration of age. While Adegi on the WAEC/GCE certificate was said to be an error committed at the time of registering for examination which led to the issuance of the certificate, no word was uttered on the name Biobakuma, instead of Biobarakuma, also appearing on the same certificate. The First School Leaving Certificate issued in 1976, at page 129, has the surname Degi and the firstname Biobaragha which is not a synonym of Biobakuma nor Wanagagha or Wangagha.”

On who can effect change of name on educational certificate

It is only the authorities that issued certificates that can effectively change the names appearing thereon, and no affidavit of correction or regularization can effectively change the names. In the instant case, it was only the authorities that issued the First School Leaving Certificate in 1976, and the West African Examination Council that issued GCE Certificate in 1984 that could effectively change the names appearing thereon, and not the 1st respondent as he attempted to do.

On procedure for change, correction and confirmation of name-

Affidavit of change, correction and confirmation of name has to be by a Deed Poll and not by mere deposition. In the instant case, the trial court was right that it is only by a Deed Poll, and not by mere deposition, that a change in a name on an official certificate can be effected and further that since the procedure necessarily affects official record and archives of the nation, it is after the Deed Poll that the deponent approaches the Nigerian Civil Registry to have the change published in the official gazette. None of those procedures was done by the 1st respondent in this case.

Courtesy:

Moruff O. Balogun Esq.
Ijebu Ode, Ogun State.
08052871414
09121207712 [WHATSAPP]

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