The presidential candidate of the Peoples Democratic Party (PDP) in the 2019 general elections, Atiku Abubakar, and his party, have formally filed their appeal against the judgement of the presidential election petitions tribunal at the Supreme Court.
The appellants in their notice of appeal dated September 24 hold that the tribunal erred in its decision to dismiss its petition against the election of President Buhari.
See Ground 1 – 10:
GROUND 1: ERROR IN LAW
The Learned Justices of the Court of Appeal erred in law when they relied on “overall interest of justice” to hold that the 2nd Respondent’s Exhibits R1 to R26, P85 and P86 were properly admitted in evidence.
PARTICULARS OF ERROR:
1. Exhibits R1 to R26, P85 and P86 were not pleaded by the 2nd Respondent.
2. Exhibits R1 to R26, P85 and P86 were not frontloaded.
3. No leave of court was sought pursuant to paragraph 41 (8) of the 1st Schedule to the Electoral Act 2010 (as amended) to receive Exhibits R1 to R26, P85 and P86 in evidence.
4. Exhibits P85 and P86 were tendered through PW40 who is not the maker and there is no nexus between him and the documents.
5. Exhibits R1 to R26, P85 and P86 were held to have been properly admitted in evidence based on a blanket statement.
GROUND 2: ERROR IN LAW
The Learned Justices of the Court of Appeal erred in law when they held thus:
“My firm view is that Section 76 of the Electoral Act is clearly inapplicable to the issues under consideration. The form referred to are the form to be used in the conduct of the election as FORM CF001 had been taken care of in Section 31 of the Electoral Act and the said FORM CF001 is tied to the steps laid down in the said Section 31 of the Electoral Act.
More importantly the law is firmly settled that a candidate is not required by the Constitution or the Electoral Act to attach his certificates to FORM CF001 before the candidate can be considered or adjudged to have the requisite educational qualifications to contest election.”
PARTICULARS OF ERROR:
1. The Court below gave restrictive interpretation to Section 76 of the Electoral Act 2010 (as amended) in order to exclude Form CF001 from its provisions.
2. The conduct of election by the 1st Respondent starts with the screening of candidates.
3. No candidate can be screened unless he completes Form CF001 (Exhibit P1).
4. In Form CF001, under the column for “Schools Attended/Educational Qualification with dates”, there is the clear provision: “ATTACH EVIDENCE OF ALL EDUCATIONAL QUALIFICATIONS”.
5. Certificates are evidence of educational qualifications.
GROUND 3: ERROR IN LAW
The Learned Justices of the Court of Appeal erred in law when they held as follows:
“The reasonable inference or plausible meaning attachable to the above provision of Electoral Act 2010 as amended is that a Candidate can list information concerning evidence of his qualifications or other relevant information(s) about himself. The demand or information required in FORM CF001 cannot be more or higher than the statutory requirements.”
PARTICULARS OF ERROR:
1. Form CF001 is designed to take care of the provision in section 31(2) of the Electoral Act (as amended) regarding the “list or information” a candidate is expected to submit and verify by an Affidavit.
2. The prescription in Form CF001 for a candidate to attach evidence of all educational qualifications is part of statutory requirements.
3. Form CF001 is made pursuant to statutory provisions.
GROUND 4: ERROR IN LAW
The Learned Justices of the Court of Appeal erred in law when they held thus:
“There was/is no pleadings in the Petition to the effect that 2nd Respondents failure to attach his certificates to Form CF001 amounts to lack of educational qualification to contest the election. In other words the issue of failure to attach certificates which has been flogged throughout the length and breadth of the Petitioners Address (es) in Reply to 1st, 2nd and 3rd Respondents final written address is not the case of the Petitioner in the pleadings. No issue was joined on non production of certificates or failure to attach them as an infraction of section 131, 137 and 138 of the Constitution of Federal Republic of Nigeria, 1999 as amended…
All submission about failure to produce certificates or attach same to CF001 is hereby discountenanced. Even if it can be said that the submissions made are in tandem with the Petitioners Pleadings on issues 1 and 2 the fact remains that none of the facts pleaded were proved or established as required by law.”
PARTICULARS OF ERROR:
1. Clearly, the Appellants pleaded and proved the allegation that the 2nd Respondent gave false information of a fundamental nature to the 1st Respondent in aid of his qualification.
2. The issue raised above was done suo motu by the court below without affording the Appellants a hearing on it.
3. The Court below set out in full, the pleadings in the Petition under the heading: Grounds 4 and 5: “Non-Qualification and giving of false Information”, which paragraphs 388 – 405 of the Petition cover.
4. Paragraph 396 thereof is predicated on the 2nd Respondent’s claim that all documents relating to his academic qualification “are currently” with the Secretary to the Military Board.
5. The Appellants also pleaded thereof that the Nigerian Military denied that it held or was in possession of the 2nd Respondent’s certificates.
6. Paragraph 399 thereof pleads that the Appellants will contend that the 2nd Respondent was not qualified to contest the said election.
7. The Appellants are not enjoined to plead the law but material facts.
8. The failure of the 2nd Respondent to produce his Certificates or attach same to Form CF001 in the face of unequivocal denial by the Army that his Certificates were not with them went to the root of the allegation against the 2nd Respondent that he gave false information of a fundamental nature to the 1st Respondent in aid of his qualification.
9. The Appellants pleaded and proved the allegation that the 2nd Respondent gave false information of a fundamental nature to the 1st Respondent in aid of his qualification.
10. The finding above is perverse.
GROUND 5: ERROR IN LAW
The Learned Justices of the Court of Appeal erred in law when they failed to consider and apply the recent case of A.A MODIBBO v MUSTAPHA USMAN AND ORS, an unreported decision of the Supreme Court in Appeal No SC/790/2019 delivered on 30th day of July, 2019, cited and relied upon by the Appellants wherein the principles enunciated therein have direct bearing on the Petition.
PARTICULARS OF ERROR:
1. In the above judgment, the Apex Court in clear and unequivocal terms stated the meaning and standard of proof of “false information”.
2. By the above decision, the Petitioners were only required to prove that any of the information in Exhibit P1 was contrary to truth or fact that is to say untrue simpliciter.
3. In reviewing the Appellants’ case, the court below referred to the said judgment of the Supreme Court five times but failed to consider and apply same.
4. The judgment considered “false information” in relation to the contents of Form CF001 verified on Oath and the definition of “false”.
5. By the principle of stare decisis, the court below was under an obligation to consider and follow the principle of law enunciated therein relevant to the issue of the non-qualification of the 2nd Respondent canvassed by the Appellants.
6. The lower Court failed to do so and no reason was given.
GROUND 6: ERROR IN LAW
The Learned Justices of the Court of Appeal erred in law when they held as follows:
“There is no evidence before the Court to disclaim or prove that the 2nd Respondent lied that he went to Primary School, Secondary School and that he joined the Army in 1962 with RW1 and many other persons in the 2nd Respondent’s C.V. attached to Exhibit P1 tendered by the Petitioners. Page 1 thereof shows conclusively that he attended Primary School and that he attended Katsina Provincial Secondary School (no Government College) Katsina in 1956 – 1961 and went to Nigerian Military Training from 1961 – 1963. The evidence of RW1 and RW2 bear testimony to the aforesaid facts. The said RW1 and RW2 establish beyond doubt that 2nd Respondent had educational qualifications he filled in FORM CF001 on 8/10/2018.”
PARTICULARS OF ERROR:
1. The educational qualifications the 2nd Respondent claimed in Exhibit P1 are “Primary School Certificate”, “WASC” and “Officer Cadet”.
2. The 2nd Respondent did not predicate his educational qualifications on any other certificate or ground.
3. The 2nd Respondent appreciated that he was under an obligation to attach evidence of the certificates/qualifications he claimed in Form CF001.
4. The 2nd Respondent did not attach any of them and claimed that they “are currently” with the Secretary to the Military Board in an affidavit he deposed to on 24th November, 2014.
5. The Appellants led evidence that the military denied being in possession of the certificates.
6. The information on the issue contained in Exhibit P1 is false and it is of a fundamental nature in aid of his qualification.
7. RW1 and RW2 did not establish in any manner whatsoever that the 2nd Respondent had the educational qualifications he claimed in Form CF001.
8. Proof of educational qualification is not established by so claiming in an Affidavit.
9. The Appellants led sufficient evidence before the lower Court to prove that the 2nd Respondent lied concerning the Schools he purported to have attended and Certificates obtained.
10. Exhibit P1 cannot by any stretch of imagination be conclusive proof that the 2nd Respondent attended Primary School and Katsina Provincial Secondary School (now Government College), Katsina from 1956 to 1961 and that he went to Nigerian Military Training School from 1961 to 1963.
11. RW1 and RW2 did not in any way establish beyond doubt, as held by the lower Court, that 2nd Respondent had educational qualifications he filled in Form CF001 on 8/10/2018.
12. If anything, the evidence of RW1 and RW2 concerning educational qualifications of the 2nd Respondent as filled in Form CF001 on 8/10/2018 is merely hearsay.
13. The 2nd Respondent did not attach to Form CF001, filled on 8/10/2018, the Certificates he claimed to have attained neither did he tender any Certificate before the lower Court as conclusive proof of his educational qualifications.
GROUND 7: ERROR IN LAW
The Learned Justices of the Court of Appeal erred in law when they held as follows:
“The Petitioners claimed that they have proved the false Affidavit and in addition they pleaded and tendered public statements made by the Secretary to the Army Board both in the electronic and print Media and relied on Exhibit P80 and P24 to show that the Army emphatically denied the claim and as such onus shifts on the 2nd Respondent to disprove it.
The fact remains that the Petitioners failed to call the then Director of Army Public Relations, Brigadier General Olajide Laleye who they pleaded in paragraph 396 of the Petition as having debunked the assertion of 2nd Respondent contained in Affidavit sworn to on 24/11/2014. The said paragraph 396 constitutes the fountain and pivot of the Petitioners’ allegation of and they have a bounden duty to show that the Affidavit contained false information of a fundamental nature in aid of his qualification for election.”
PARTICULARS OF ERROR:
1. The 2nd Respondent claimed that his certificates “are currently” with the Secretary to the Military Board who is under the authority and command of the 2nd Respondent as the Commander-in-Chief of the Armed Forces.
2. In the Affidavit verifying the information contained in Exhibit P1, the 2nd Respondent stated that “they are true and correct”.
3. Apart from PW62 who gave evidence on the qualification of the 2nd Respondent, the 2nd Respondent’s witnesses namely RW1, RW2, RW3 and RW4 were cross examined on the 2nd Respondent’s claimed qualifications and Exhibit P1 and elicited evidence favourable to the case of the Appellants.
4. The 2nd Respondent particularly called RW1 in aid of his qualification but he repudiated the claim of the 2nd Respondent that his certificates were with the Secretary to the Military Board.
5. The 2nd Respondent did not at any time deny or challenge the contents of Exhibit P1.
6. In further aid of his qualification, the 2nd Respondent tendered Exhibit R23 which contained Brigadier Olajide Laleye’s denial that the Military has the 2nd Respondent’s certificates in its possession.
GROUND 8: ERROR IN LAW
The Learned Justices of the Court of Appeal erred gravely in law when they held in that:
“The pleadings reproduced above are laced and laden with serious criminal allegations or criminal wrongdoing against the 2nd Respondent.
The settled position of the law is that the party making such allegations must lead or proffer credible evidence in order to sustain the allegations as a prelude to the grant of the relief sought thereupon. The Petitioners have the task and obligation to prove the allegations beyond reasonable doubt.”
PARTICULARS OF ERROR:
1. By the foregoing passage, the lower Court referred to paragraphs 388 to 405 of the Petition.
2. The allegations in paragraphs 388 to 405 of the petition are not laced or laden with criminal allegations as wrongly held by the lower Court.
3. The allegations in paragraphs 388 to 405 of the Petition are ordinarily subject to proof on balance of probabilities.
4. By demanding proof beyond reasonable doubt, the lower Court imposed much higher burden of proof on the Appellants than what the law required.
5. The lower Court’s demand of proof beyond reasonable doubt on allegations of mere civil wrongs is perverse in the extreme.
GROUND 9: ERROR IN LAW
The Learned Justices of the Court of Appeal erred in law when they held as follows:
“The Petitioners argued strenuously that the failure of the 2nd Respondent to attach the certificates listed in the FORM CF001 to the said FORM means that 2nd Respondent does not possess the certificates he claimed in part C of FORM CF001 about schools attended/Educational Qualifications with dates and that evidence of all educational qualifications should be attached.
The 2nd Respondent stated in the said column that he attended Primary School and has Primary School Certificate in 1952. That he has Secondary education and WASC in 1961 and for his Higher School he stated “OFFICER CADET” 1963.
There is no evidence before the Court to disclaim or prove that the 2nd Respondent lied that he went to Primary School, Secondary School and that he joined the Army in 1962 with RW1 and many other persons in the 2nd Respondent’s C.V. attached to Exh. P1 tendered by the Petitioners. Page 1 thereof shows conclusively that he attended Primary School and that he attended Katsina Provincial Secondary School (now Government College) Katsina in 1956-1961 and went to Nigerian Military Training from 1961-1963. The evidence of RW1 and RW2 bear testimony to the aforesaid facts.
The said RW1 and RW2 establish beyond doubt that 2nd Respondent had educational qualifications he filled in FORM CF001 on 8/10/2018.”
PARTICULARS OF ERROR:
1. Form CF001 mandatorily requires that the 2nd Respondent was to attach his qualifying certificates, which requirement was not fulfilled by the 2nd Respondent.
2. Evidence was led by the Appellants to show that the 2nd Respondent does not posses the Certificates he listed in Form CF001.
3. The Appellants having established that the 2nd Respondent does not have the certificates to attach to his to Form CF001, the burden of proof shifted to the 2nd Respondent to prove, in accordance with the mandatory requirement of Form CF001, the schools he attended and attach the certificates obtained, to authenticate that claim, which burden the 2nd Respondent failed to discharge.
4. The evidence of RW1 and RW2 and the contents of the 2nd Respondent’s CV are not substitutes for the documentary evidence of the qualifying certificates.
5. The 2nd Respondent, who had claimed on oath that he possesses the Certificates for Primary School, Secondary School and “Officer Cadet” in part C of Form CF001 was shown not to have those Certificates, and the 2nd Respondent was not able to produce the said Certificates.
6. The lower Court was wrong to equate the 2nd Respondent’s attendance of Primary School, Secondary School, and Officer Cadet Course, for the representation of the 2nd Respondent that he possesses these Certificates.
7. The lower Court was wrong to infer that the 2nd Respondent handed over his certificates to the Secretary Military Board at any time whatsoever.
8. There was oral evidence from RW1 to the effect that the representation of 2nd Respondent of having submitted his “Certificates” to military authorities was false.
9. There was evidence from PW1 and PW2 and from Exhibits P80 and P24 on the denials of the Military Authorities that they are in possession of 2nd Respondent’s “Certificates” as deposed to on Oath by 2nd Respondent.
GROUND 10: ERROR IN LAW
The learned Justices of the Court of Appeal erred in law when they held, as follows:
“The Petitioners Learned Counsel had argued that the evidence led to prove that 2nd Respondent attended secondary school or a primary school or that he attended some courses, is irrelevant because he did not rely on any of those qualification in Exhibit P1. With profound respect to the Learned Senior Counsel his position is faulty because the said FORM CF001 specifically asked 2nd Respondent the schools he attended with qualifications attained or obtained in order to determine whether the 2nd Respondent has been educated up to at least the School Certificate level or its equivalent which is part of the qualifications stipulated in Section 131 of the Constitution of the Federal
Republic of Nigeria 1999 as amended.”
PARTICULARS OF ERROR:
1. The 2nd Respondent, from the contents of Exhibit P1, did not rely on the alternative qualifications canvassed by the Respondents in the lower Courts.
2. Form CF001 not only asked the 2nd Respondent to state the schools he attended, but also mandatorily required him to attach the certificates obtained by him from the said schools.
3. The qualification relied upon by the 2nd Respondent under Section 131(d) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) is that he obtained a First School Leaving Certificate, WASC and Officer Cadet.
