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TRIBUNAL HAS JURISDICTION TO HEAR FORGERY CASE AGAINST SUSWAM -S'COURT

By NBF News
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Attempts by the ruling Peoples Democratic Party [PDP] to stop the Benue state Governorship election Tribunal from hearing the allegations of certificate forgery brought against Governor Gabriel Torwua Suswam by the All Nigerian Peoples Party [ANPP] and its governorship candidate, Senator Daniel Sarror hit a brickwall yesterday at the Supreme Court.

In the said petition, the petitioners are contesting Governor Suswam's  election on the grounds that at the time of the election, he was not qualified to contest the governorship position, having presented a forged certificate to the Independent National Electoral Commission [INEC] contrary to section 182 [1] of the 1999 constitution [as amended].

The allegations were premised on the ground that the governor who won the election on the platform of the PDP is in possession of three General Certificate in Education [GCE] O' level 1982 Certificates obtained at the same sitting with the same candidate number, two of them bearing the same certificate number, different subjects and even where the subjects are common, the scores differ.

Before the election petition tribunal, the PDP filed preliminary objections through its counsel, Chief Solo Akuma [SAN] challenging the competence of the petition and the tribunal in its ruling of August 11, 2011 dismissed the petition upon the ground that the presentation of forged certificate is a pre-election matter.

Dissatisfied, the petitioners lodged an appeal at the Court of Appeal, Makurdi which delivered its judgment on September 27, 2011 allowing the appeal on the grounds that the tribunal has jurisdiction to entertain the petition and remitted the petition back for re-trial before another tribunal different from the one that has heard the petition before.

It was this judgment by the Court of Appeal that the PDP sought to set aside at the Supreme Court on grounds of mixed law and facts.

When the matter came yesterday, the Chief Justice of Nigeria [CJN], Justice Dahiru Musdapher leading four other Justices of the court dismissed the appeal after he disagreed with the appellant that 'the tribunal has no jurisdiction to entertain the issue of forgery but a regular court.'

According to the CJN, 'the issue of qualification of a candidate for the position of a Governor of a state is provided for in section 138 of the Electoral Act 2010 and section 182 of the 1999 constitution and is an issue that can be challenged at an election tribunal.

'It is not a pre-election matter. You can question the qualification of a candidate in a petition before an election tribunal among other issues and the tribunal has the jurisdiction to determine such issues raised before it on merit.

This appeal is a waste of time of this court. Go back to the tribunal and let it determine the matter, why do you come here? The law says the qualification of a candidate can be questioned. It is the tribunal that will decide base on evidence placed before it.

Justice Walter Onnogen, another member of the panel said, 'He who alleges must prove allow the petitioners to go and prove their case, don't interpret their own petition for them.'

In the final analysis, the Supreme Court in its ruling by the CJN held 'in my view, there is no dispute that a tribunal can entertain a pre-election matter and it was clearly wrong for the tribunal to have dismissed the petition at that stage.

'The issue of qualification is clearly within the jurisdiction of the tribunal and this is not a pre-election matter. This appeal has failed and the petition is hereby remitted to the tribunal for determination.'

Previous attempts by Chief Akuma and Damien Dodo [SAN] to persuade the court to hear the appeal failed.

The sole issue raised by counsel to the PDP, Chief Akuma for the determination of the appeal before the apex court is;

*Whether in the circumstances of this case and in view of section 31 [5] of the Electoral Act, as amended, the Court of Appeal was right when it held that the Governorship election tribunal has jurisdiction to entertain election petition founded on alleged presentation of forged certificate by the Governor to INEC, under section 182 [1] of the constitution.

Chief Akuma submitted that by virtue of section 35 [5] of the electoral Act, 2010, the proper forum to entertain the case is a Federal High Court, or High Court of a State or FCT.

The said section 35 [5] reads:
'Any person who has reasonable grounds to believe that any information given by a candidate in the affidavit or any document submitted by that candidate is false may file a suit at the Federal High Court, High Court of a state or FCT against such person seeking a declaration that the information contained in the affidavit is false.'

The appellant further submitted that section 35 [6] of the Electoral Act, 2010 vets the Federal High Court, High Court of a State or FCT with powers to disqualify any candidate from contesting the election, if the court determines that any of the information contained in the affidavit of any document submitted by that candidate is false.

It is the contention of the PDP that in the instant case, the Governor did not submit any document or certificate to INEC; rather the governor completed INEC Form 001 which was deposed to at the FCT High Court Registry, Abuja on January 27, 2011.

The party said it is the information contained in Form 001 that formed the basis of the allegation of presentation of forged certificate by the petitioners.

Consequently, the PDP argued that since the Governor did not submit any certificate at all at INEC, the allegation of presenting forged certificate becomes non sequitur and could not be a valid ground to support the petition and urged the apex court to allow the appeal and set aside the judgment of the Court of Appeal.

It cited the cases of Jang v Dariye [2000] 15 NWLR pt 843 at page 436, Udeagha & Anor V Omegara &ors [2010], Orji V Ugochukwu [2009]; Ameachi v INEC [2005] to support its position.

On their part, the ANPP and It Candidate, Senator Sarror [1ST AND 2nd] respondents in urging the Supreme Court to throw out the appeal for lacking in merit submitted that the disqualification of a candidate to an election to the office of Governor of a State is provided for by section 138 [1] [a] of the Electoral Act, 2010 and section 182 [1] of the 1999 constitution.

The respondents said for the purpose of this appeal, the relevant provision is section 182 [1] of the 1999 constitution which reads:

'182[1] No person shall be qualified for election to the office of Governor of a State if;

{i] He has presented a forged certificate to INEC.'

They argued through their counsel, C.S Orpin that it is not necessary for the Governor to have been convicted by a regular court for the offence of forgery of certificate before his return as winner to the April 16, 2011 election to the office of Governor of Benue State can be questioned.

The respondent contended that the answers to the issue of forgery and presentation of forged certificate to INEC are matters of evidence that cannot be severed from the rest of the petition and tried at an interlocutory stage to determine jurisdiction addi