In the vicissitudes of life, cares of the world, work, loyalty, even very intelligent colleagues may be prone to ask for that which is not grantable. It is our duty to always send the message that the court is not a church where miracles are performed.
I have been inundated with what I think the court will do on the 8/3/2019, in respect of the alleged forgery/age falsification matter against Gov. Wike. I have decided to state my position before the d-day.
WHAT THEN IS FALSIFICATION OF AGE?
It is an act of either subtracting time from one’s age or adding time to one’s age which is called forgery because it is false.
Again, forgery has been defined to mean the act of making a false document or altering a genuine one for same to be used. (Blacks Law Dictionary, 8th Edition)
HOW CAN IT BE ESTABLISHED?
For forgery or falsification of age to be established or sustained, the document purportedly forged must be a false representation of the genuine document. Under our law, forgery CANNOT be grounded in respect of a document in absence of its original.
Mere presentation of series of documents without pinpointing the original one from the counterfeit, cannot establish a case of forgery or falsification of age. A party alleging falsification of age, must show that; there is a document in writing; that the accused knew the document to be false and the accused presented the said document to the other party with the intention that it would be acted upon to the detriment of the victim in the belief that is genuine. (See SMART vs STATE (1974) 11 SC. 173).
The law is well settled in the case of Daggash v. Bulama (2004)14 NWLR (Pt. 892) 144; that where allegation of crime (as in this case) is directly in issue in a civil or criminal proceedings, it must be PROVED BEYOND REASONABLE DOUBT and the onus of proof is on the person who asserts.
Having established this position, the next question is: can falsification of age be tried via Originating Summons by way of affidavit evidence?
The court in deciding this issue in IKENTA BEST (NIG) LTD v. A.G. RIVERS STAYE (2008) 6 NWLR (PT. 1084) 612, stated clearly that the impropriety of embracing affidavit evidence in discharging burden of proof in a criminal matter.
It unequivocally said that affidavit evidence would make it virtually IMPOSSIBLE for anybody to prove the allegation of forgery/falsification of age beyond reasonable doubt.
The matter on the 8/3/2019, was instituted via Originating Summons, asking the court to make declaration in respect of an alleged criminal act by Gov. Wike. This is not by law, doable. An action by an originating summons is used when FACTS of a case are not in dispute.
In this case, the facts are vigorously and violently in contention. It is not grantable and may end up being a waste of time.
The best the applicants can do in the circumstance is to wait for Gov. Wike to finish his tenure so they can properly institute a criminal action against him if the need be. This is because, Gov. Wike is clothed with immunity (section 308 of the constitution) and by that position, it is forbidden to appear in court to answer to any criminal charge (s) against him during his tenure.
Again, can falsification of age disqualify a candidate who is ordinarily qualified under the Electoral Act and the Constitution?
The purports of sections 31(5) of the Electoral Act and 177 (b) of the 1999 CFRN is not designed to disqualify a candidate who is otherwise qualified to contest the relevant elections under the provisions cited hereinabove; he will not, notwithstanding the inconsistencies in his forms, be disqualified to contest elections.
The law according to the cases of INEC v. MUSA (2003) 3 NWLR (Pt. 806), 72 and NPP v. USMAN (2008) 12 NWLR (Pt. 1100) 154, is that, where there is a matter of alleged falsification of age (as in Gov. Wike’s case) or document, it must relate to qualifying or disqualifying factor by virtue of the Constitution of the Federal Republic of Nigeria.
The mens rea in falsification of age for eligibility to contest election as Governor must, of necessity, relate to circumventing the age prescription of 30 years to contest election.
It must be noted that a person who is qualified to contest an election by virtue of the Constitution of Nigeria, 1999, cannot be disqualified by the operation of any other law in force in Nigeria which is subject to the Constitution.
Presently, the Constitution prescribes 30 years of age to run for governorship position in Nigeria. Is Wike currently qualified? If the answer is in affirmative, can an alleged falsification of age which has nothing to do with his current age, disqualify him? My answer is a resounding NO.
In Okezie Ikpezu v. Dr. Ogah, that has to do with forgery and also principally borders on section 31(5) of the same Electoral Act which empowers the Federal High court to entertain, the Supreme court of Nigeria described the case as a storm in a teacup, which shouldn’t have been entertained in the first case.
This is Nigeria. If the CJN could be removed with an exparte order not known to law, anything is possible in this part of the world.
Ogbom Goodluck, Esq, is a Port Harcourt based Legal Practitioner.
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