BY OGHENEVWOGAGA OROHWOASE
“In the court of justice, both parties know the truth, it is the judge that is on trial,” so said His Lordship, JR Midha of the New Delhi High Court, in his valedictory speech.
This observation holds true for all times and indeed so in the matter between Olorogun David Edevbie and Rt Hon Sheriff Oborevwori in legal contest for the rightful candidate of the Delta State Peoples Democratic Party for the 2023 governorship election.
There has been opposite verdicts by the trial and appeal courts judges and the matter is now at the apex temple of justice.
Edevbie accused Oborevwori of presenting forged or false credentials with inconsistencies and contradictions in the names and ages reflected in his primary, secondary, first degree, NYSC, Master’s degree certificates and personal court affidavits, in entering for the PDP Governorship primary.
The Federal High Court agreed with Edevbie’s submissions, ( and) accordingly disqualified Oborevwori and declared Edevbie as the rightful candidate of the party, having returned second in the primary.
Dissatisfied, Oborevwori approached the Court of Appeal arguing that the suit was premature, in that, though Oborevwori indeed submitted the documents in question to enter the primary, the party had not yet submitted his name and his credentials to the Independent National Electoral Commission before the suit was commenced.
He also argued that in view of the criminal nature of the allegation, the suit ought to have been commenced by Writ of Summons which requires calling of witnesses and proof beyond reasonable doubt, rather than by Originating Summons by which allegations can be proved by the strength of contradictions on the face of documents filed in evidence.
The Court of Appeal agreed with him and upturned the judgement of the trial court based on those technical grounds.
Thus, the main points of law for determination before the Supreme Court are: (1) whether the trial court indeed erred by entertaining the suit when the name of the candidate had not been submitted to INEC (2) whether the trial court erred by allowing the commencement of the suit by Originating Summons.
The relevant provisions of the law for scrutiny in the matter are Sections 177 and 182 (J) of the 1999 Constitution, Sections 29 and 84 of the 2022 Electoral Act and the rules or directives of the Federal High Court on pre-election matters.
Section 177 of the constitution provides a minimum of secondary school certificate for a Governorship candidate. Whereas Oborevwori presented one, Edevbie argued that by virtue of the discrepancies of age and names in the WASCE certificate and other documents, his identity and qualification are questionable and, that being so, he cannot be said to have met the minimum qualification. Justice Taiwo Taiwo now retired but of the Federal High Court then, agreed with his argument.
Section 182 (J) of the constitution provides that no person shall be qualified to enter for the office of Governor of a state “if he has presented a forged certificate to the Independent National Electoral Commission.”
Oborevwori is hugging strongly to this provision. Not denying that he presented the documents with the discrepancies to enter for the primary, his emphasis and insistence is that they cannot be challenged from the primary but only unless and until they had been submitted to INEC.
However, Section 29 (5) of the 2022 Electoral Act provides that: “Any aspirant who participated in the primaries of his political party who has reasonable grounds to believe that any information given by his political party’s candidate in the affidavit or any document submitted by that candidate in relation to
his constitutional requirements to contest the election is false, may file a suit at the Federal High Court against that candidate seeking a declaration that the information
contained in the affidavit is false.”
While the preceding subsections describes how a party shall submit the name of its candidate and credentials to INEC, the particular subsection (5) does not expressly provide that the challenger has to wait for submission of the documents to INEC before challenging the integrity of the documents in court.
This provision is further reinforced by Section 84 (14) of the Electoral Act which also provides that:
“Notwithstanding the provisions of this Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party have not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court for redress.”
Again, 84 (14) does not prescribe a recourse to INEC before challenge of the documents.
Justice Taiwo Taiwo of the Federal High Court held that the provisions are clear, unambiguous, have a force of their own and do not recommend a recourse to INEC before an aspirant can take action on the outcome of a party primary. In his view, a party primary is an organised contest recognised in its own right by law as an electoral exercise and that the PDP was wrong to have cleared Oborevwori to participate in it with such documents which he believes contradict themselves.
The Appeal Court led by Justice Ige held a different view: that the provisions allowing an aspirant to challenge the winner of a party primary who is suspected to have submitted false documents should be read together with other provisions requiring the party to submit the credentials of its candidate to INEC, before they can be challenged.
In all these, what is at stake is the spirit and intendment of both the constitution and the Electoral Act to check the authenticity of the qualification documents of candidates either in a pre-election which is an intra-party activity or in the general election proper between different political parties.
The heart of the matter is, for a nation that seeks character and integrity in leadership, if our laws and our courts would tolerate the presentation of forged or false documents for entry into political party primaries or allow same on technical grounds.
The law seems to foresee the possibility of aspirants presenting disagreeable documents and seems to provide for other aspirants in same race to challenge. The question now is when and how that should happen.
Indeed, Section 84 (3) of the Electoral Act puts the onus on political parties to ensure that their candidates meet the constitutional requirements for qualification:
“A political party shall not impose nomination qualification or disqualification criteria, measures, or conditions on any aspirant or candidate for any election in its constitution, guidelines, or rules for nomination of candidates for elections, except
as prescribed under sections 65, 66, 106, 107, 131, 137, 177 and 187 of the Constitution.”
This suggests that political parties must be meticulous in the scrutiny of the credentials of their aspirants for various positions without which they can be consequences. The laws suggest that this process starts with the right of aspirants in same party to challenge such suspicious submissions in court. If left to proceed with the anomaly, the party candidate may further be challenged by the candidates of opposing political parties in the election proper.
The other issue is the provision of the law which requires that such challenge should be made within 14 days of the conclusion of the primary. The dilemma in insisting on waiting for submission to INEC before taking action is what then happens if the party does make the submission to INEC within or before the expiry of the 14 days? In this case the PDP either deliberately or inadvertently submitted to INEC long after the 14 days.
Would that mean the contending aspirant has lost his right to challenge? Can that be the contemplation of the law? Can the law probate a right and technically reprobate same right in same breathe? How would this situation help in fulfilling the intention of the law in weeding out forgeries and falsehood in the process of national leadership?
The argument over Originating or Writ of Summons is about the burden of proof. The use of Originating Summons implies that the allegations can be proven by the simple detection of the contradictions in documents filed without recourse to inviting witnesses. In this case, the various certificates containing different names, including the affidavit of age in which Oborevwori swore to have been born in 1963 and the WASCE certificate stating 1979 as the year of birth of the owner were tendered by Edevbie.
Neither Oborevwori nor the PDP has denied his submission of the contradictory documents for entry into the primary and Federal High Court held that the contradictory contents were enough proof.
The question for determination is: Could the Federal High Court have erred by entertaining the suit through Originating Summons? The answer seems most probably to be found in the fact that, whereas the 2022 Electoral Act grants jurisdiction to the Federal High Court, to the exclusion of the states and the FCT High Court, to handle election matters as the court of first instance, the Federal High Court subsequently provided a guideline for approaching it, directing, unambiguously, through a circular that, “EVERY pre-election matters shall be commenced by Originating Summons.”
The emphasis here is “EVERY” and, notwithstanding the criminal nature of the allegations against Oborevwori, the suit by Edevbie is a pre-election matter.
The question, again, is: How will it stand to reason for Edevbie to have commenced the suit by any other way than by how the Federal High Court which is to sit over the matter directed? Could Edevbie have erred in obeying the directive of the prescribed court or the court itself by following its own directive?
The trial court noted that, apart from his reliance on technicalities, Oborevwori did not make any effort to disprove the allegations of discrepancies in his documents nor show that he made any efforts to have written to WAEC to correct the mistakes, if truly they were mistakes and that they emanated from the issuing authority.
The trial court held that merely swearing affidavits and producing a Deed of Pool signed and gazetted by himself as Speaker, without the involvement of the issuing authorities cannot be accepted as cure for the discrepancies.
Interestingly, Oborevwori’s handlers recently bragged that he decided to present only his Master’s degree certificate to INEC and hid back the contradictory certificates he earlier presented to enter the primary.
This has been described as an admission of the fact that, indeed, something is wrong with his documents and such volte face amounts to a failure of character which will be tragic for those he seeks to govern.
The burden is now on the Supreme Court to examine the whole issues which strike at the very heart of the spirit and intendment of the law to ensure integrity with regards to persons seeking leadership positions in the Nigerian political space. Indeed, on this, it is not just the judges or the judicial system but Nigeria as a nation that is on trial.
. Orohwoase wrote from Okpara Inland.