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Senator Adeleke’s Qualifications Already Settled in Law And Cannot Be Revisited; Oyetola And APC Merely Building Castles In the Air, By Pelumi Olajengbesi Esq.

Pel
November 6, 2022

 

Governor Oyetola and his party, the All Progressives Congress (APC) are still struggling with the reality that it is over in Osun State. They still futilely attempt to trigger public sentiment on the subject of Senator Adeleke’s educational qualification to contest for Governor of the State or the claim that some of his certificates were forged. These are settled issues in law and nobody is interested in Oyetola’s diatribe again. Shamefully, the issue, though shallow, was poorly made one of the grounds of challenging the Osun election that returned Governor Adeleke as Governor-elect.

It is apposite to state quite clearly that the issue of Senator Ademola Adeleke’s educational qualification to contest for the seat of the Osun State Governor has long been laid to rest by the court and cannot be tried or resuscitated again by any individual by virtue of the unshaken principle of estoppel per rem judicatam.

The Osun State High Court in Suit No. HOS/M.103/2018 had pronounced on the educational qualification of Adeleke to contest for the office of the Governor of Osun State. The Court held that since Adeleke attended Ede Muslim Grammar School Ede, a secondary school certificate level school, he is qualified to contest the governorship election and does not need to have any certificate at all or pass any papers at the school certificate level before he can be considered to be so qualified. This is the law, no more, no less even though the Senator has established his educational qualifications and exploits with several other proof.

 

The said decision of the Osun State High Court in keeping with the decision of the Supreme Court in KAKIH v. P.D.P. & ORS (2014) 15 NWLR (PT.1430) 374, that Adeleke having attended the Muslim Grammar School, Ede, a secondary School Certificate level school has satisfied the requirement of Section 177(d) of the 1999 Constitution and is therefore qualified to be candidate for the election of Governor of Osun State and need not have any certificate at all or pass any paper at school certificate level to be so qualified is a judgment in rem.

 

This determines the legal status of his educational qualification as candidate for election of Governor of a State. Being a judgment in rem, it binds the world at large and not only the parties to the suit on the issue of whether Adeleke meets the requirement of Section 177(d) of the 1999 Constitution.

 

The Supreme Court held in OGBORU & ANOR v. UDUAGHAN & ORS (2011) LPELR-8236 (SC) that:

 

"A judgement in rem may be defined as the judgement of a Court of competent jurisdiction determining the status of a person or thing as distinct from the particular interest of a party to the litigation. Importantly, a judgment in rem is conclusive and binds all persons whether a party to the proceedings or not. It stops anyone from raising the issue of the status of person or persons or things, or the rights or title to properly litigated matter before a competent Court.”

 

Also in the case of DIKE & ORS v. NZEKA II & ORS (1986) LPELR - 945 (SC), the Apex Court inter alia held that a judgment in rem is a judgment contra mundum – binding on the whole world – parties as well as non-parties.

 

Having regard to the foregoing, the judgment on this issue operates as estoppel per rem judicatam to bar any further suit by anybody on this same issue of the educational qualification of Adeleke to be candidate in the election to the office of Governor of Osun State. This judgment binds the Osun State Governorship Election Tribunal and robs the court of required powers to try the issue of the qualification of Adeleke to be candidate in the election of Governor by virtue of the simple operation of the principle of estoppel per rem judicatam.

 

Therefore the Petitioners’ ground that Adeleke did not possess the educational qualification to contest the election to the office of Governor of Osun, is incompetent and cannot be tried by the Osun State Governorship Election Tribunal, being a Court of co-ordinate jurisdiction with the High Court of Osun State. It has no jurisdiction to revisit an issue already determined by Osun State High Court. As a Court whose jurisdiction is co-ordinate with that of Osun State High Court, the Osun State Governorship Election Tribunal has no jurisdiction to review or set aside the said judgment of Osun State High Court on the educational qualification of Adeleke to be candidate in the election of a Governor of Osun State.

 

Notwithstanding that the said matter tried before the Osun State High Court did not address the issue of forgery of certificates, however, the issue of Adeleke allegedly submitting forged certificate to INEC along with his Form CF001 in 2018 was litigated upon before the High Court of the Federal Capital Territory, Abuja in Suit No. FCT/HC/BW/CV/122/2018. On appeal to the Court of Appeal in the case of ADELEKE v. RAHEEM & ORS (2019) LPELR-48729(CA), the Appellate Court upon review of the preponderance of evidence adduced before the trial Court unanimously resolved the issue of the forgery of school certificate in favour of Adeleke. Emmanuel Akomaye Agim, JCA (as he then was) while delivering the Leading Judgment of the Court at page 108 – 110 of the Law Report pungently held as follows:

 

“In any case as the Principal of the School and the custodian of the school records, he is in the best position to say that the school leaving testimonial which he identified as issued from his school has errors in it or not. If he says so, as he has done, that there are lots of errors on its face, he must be believed and Exhibit PL6 (AA2) the statement of result, his affidavit, the WAEC confirming affidavit and the accompanying Ledger (Details of results) show that it is reasonable to believe him. Errors or mistakes in the contents of a document cannot be treated as false information as the 1st and 2nd respondents characterised the errors in the testimonial in paragraph 16 of their affidavit in support of the originating summons. To prove false information in a document requires more than pointing out errors or mistakes or incongruities or discrepancies in the document or asserting that the document is forged on account of the errors without more.”

 

His Lordship continued;

 

“Be that as it is, such errors are of no moment because Exhibit PL6 and the West African Examination Council (WAEC) confirming affidavit and Ledger show that he satisfied the requirements of Section 177(d) of the 1999 Constitution and is therefore qualified to contest the election of Governor of Osun State. As held by the Supreme Court in AGI v. PDP (2017) 17 NWLR (Pt. 1585) 386 at 454 – 455 “Even in situations where a Governorship candidate makes inconsistent statements in Form CF001 and such candidate is nonetheless qualified to contest the election under the provision of Section 177 of the 1999 Constitution, he would not be disqualified to contest the election.” The appellant gave the statement of result PL6 to the 4th respondent to show he sat for the West African School Certificate Examination (WASCE) in May/June, 1981 in Ede Muslim High School Ede. There was no need for the argument that he can only be issued certificate if he passed certain subjects. He submitted the statement of result to show that he attended secondary school and wrote the secondary school certificate examination.”

 

Similarly, the above decision of the Court of Appeal that Adeleke did not forge his school certificate from Ede Muslim High School and that he sat for WAEC examinations in the said school is also a judgment in rem that has rendered the issue of forgery in that regard res judicata. Consequently, the issue is incompetent to be further litigated upon before the Osun State Governorship Election Tribunal, having been litigated upon by the High Court of the Federal Capital Territory, Abuja in Suit No. FCT/HC/BW/CV/122/2018 and further pronounced upon on appeal by the Court of Appeal in Appeal No. CA/A/304/2019 reported as ADELEKE v. RAHEEM & ORS (supra).

 

It is instructive at this juncture to emphasize that all the above highlighted suits being election-related matters, the constitutional timelines for their further appeals to higher courts respectively have since lapsed. No further appeals can therefore be validly entered in the suits and the findings that have been made as regards Adeleke’s qualification to contest the election to the office of Governor of Osun State and the fact that he did not forge his school certificate from Ede Muslim High School remain binding contra mundum – binding on the whole world – parties as well as non-parties.

 

In line with the principles and the applicability of estoppel per rem judicatam, the noise by Oyetola and APC on the issue of Adeleke's qualification and alleged forgery is limbless in law.

 

APC in its substance-abuse-like thought, also accused the incoming Governor of forging Diploma Certificate of Penn Foster High School awarded on 16th July 2021 and Bachelor of Science in Criminal Justice awarded by Atlanta Metropolitan State College. The question is, can this be entertained by the Osun State Governorship Election Tribunal in view of the new regime under the Electoral Act, 2022? The answer is a resounding No! The issues of submitting to INEC an affidavit containing false information, to wit, (i) the alleged forged Diploma Certificate of Penn Foster High School awarded on 16th July 2021, and (ii) the alleged forged Bachelor of Science in Criminal Justice awarded by Atlanta Metropolitan State College can no longer be entertained as a ground for challenging or questioning the election of a candidate declared as a winner of an election in Nigeria.

 

Under the previous electoral legal regime, one of the grounds upon which an election can be questioned before a Tribunal or Court as provided by Section 138(1) of the old Act is that “the candidate submitted to INEC an affidavit containing false information.” Hence, under the old Act, the issues bordering on alleged forgery of certificates could have been entertained under the ground that “the candidate submitted to INEC an affidavit containing false information”. Now, this ground no longer exist as same has been been expunged from the new Electoral Act. For the sake of clarity, Section 134(1) of the Electoral Act 2022 provides thus:

 

    “(1) An election may be questioned on any of the following grounds –   

 

(a) a person whose election is questioned was, at the time of the election, not qualified to contest the election;

 

(b) the election was invalid by reason of corrupt practices or non-compliance with the provisions of this Act; or

 

(c) the respondent was not duly elected by majority of lawful votes cast at the election.”

 

At this point, it is very crucial to clarify that under the old Electoral Act, submitting false information to INEC used to be an issue that could be litigated upon both as a pre-election suit and an election petition pursuant to sections 31 and 138(1) respectively. Now, under the new Act, section 31 of the old Act has been re-enacted as section 29 of the new Act, only with a slight tweak on right of action cum court jurisdiction - while section 31 of the old Act vested everyone with the locus standi to approach the High Court of a State or the FCT or the Federal High Court to disqualify a candidate for election to an office on the issue of submission of false information to INEC, section 29 of the new Electoral Act has restricted the right of action to only an aspirant who participated in the primaries of his political party and only the Federal High Court has been clothed with the jurisdiction to determine the issue.

 

That being said, the only court with the jurisdiction to determine whether Adeleke has submitted false information to INEC or rather forged any of the certificates submitted is the Federal High Court, and it is only an aspirant who participated with Adeleke in the primaries of PDP that can file the suit. For avoidance of doubt, section 31(5) provides thus:

 

“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 requirement to contest the election is false, may file a suit at the Federal High Court, against the candidate seeking a declaration that the information contained in the affidavit is false.”

 

Instructive to note that there is no pending suit by any aspirant who participated with Adeleke in the PDP primaries, and the 14-days timeframe within which to file such suit has since lapsed pursuant to section 285(9) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

 

It is therefore clear from the foregoing that, the ground that “the candidate submitted to INEC an affidavit containing false information” as contained in the repealed Electoral Act, having been so expunged from the new Electoral Act, is no longer a valid ground upon which an election can be challenged in Nigeria under the new dispensation of our electoral system. The law is trite that an election cannot be questioned on any other ground outside the ones expressly stated above in the Electoral Act. See: WAMINI-EMI v. IGALI & ORS (2008) LPELR-5091(CA) Pp. 21 – 22, Paras. F – E.

 

Further to the above, Section 134(3) of the new Act has expressly provided that, with respect to subsection (1)(a) of section, a person is deemed to be qualified for an elective office and his election shall not be questioned on grounds of qualification if, with respect to the particular election in question, he meets the applicable requirements of sections 65, 106, 131 or 177 of the Constitution and he is not, as the case may be applicable, in breach of sections 66, 107, 137 or 182 of the Constitution.

 

Given the above, the Petitioners cannot competently subsume their allegations of forgery under Section 134(1)(a) of the Act. Thus, there is nothing left to be contested as regards the qualification of Adeleke to contest for the office of the Governor of Osun State. All the purported allegations of forgery are standing on a quicksand and must thus fail! The new Electoral Act has taken the wind out of the sails of the forgery allegations. The said allegations of forgery and supplying false information to INEC having no provision to rest upon in the new Electoral Act, nay, the hitherto provision having been expunged from the new Act, the allegations are doomed to crash irredeemably.

 

Pelumi Olajengbesi Esq., is a Legal Practitioner and Managing Partner at Law Corridor, Abuja.

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