IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY IN THE JUDICIAL DIVISION HOLDEN AT ABUJA BEFORE HIS LORDSHIP, HON JUSTICE VALENTINE B. ASHI SUIT NO: FCT/HC/CV/2081/2017 ON FRIDAY 30 th OF JUNE, 2017

With him: LEGAL ASSISTANT: IFEOMA E. EZE (Mrs) REGISTRAR: Balami E.P., ESQ CLERKS: YUSUF AUTA & AUGUSTINA CHIKA UCHE COURT NO: HIGH COURT NO. 29 APO

BETWEEN

HONOURALE UCHENNA NNADI………………PLAINTIFF AND SENATOR (DR) ANDY UBA (A.K.A Nnamdi Emmanuel Uba)…………………..Defendant

JUDGMENT Plaintiff commenced this action by Originating summons on the 5th of June, 2017, praying for the determination of the following questions: 1. Whether having regard to the mandatory constitutional provisions of Sections 65 (2)(a) and 177(d) of the CFRN 1999, as amended, Defendant having not been educated up to at least school certificate level or its equivalent can stand for an election or be elected into the National Assembly of the Federal Republic of or to the office of Governor of 2. Whether, by the combined effect of the mandatory constitutional provisions of Sections 65 (2) (a) and 177 (d) of the CFRN 1999, as amended, the purported subsisting election of the Defendant as the Senator representing Anambra South Senatorial Zone in the National Assembly of the Federal Republic of Nigeria as well as his previous election to the office of Governor of Anambra State, when he

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is not educated up to at least school certificate level or its equivalent is not null, void, illegal, unconstitutional and of no effect whatsoever 3. Whether, in view of the mandatory constitutional provisions of Sections 66 (1) (i) of the CFRN 1999, as amended, the purported election of the Defendant as the Senator representing Anambra South Senatorial Election in the National Assembly of the Federal Republic of Nigeria is not null, void, illegal, unconstitutional and of no effect whatsoever, by reason of his presenting forged certificate to the Independent National Electoral Commission, claiming to have been educated up to at least school certificate level or its equivalent 4. Whether, in view of the mandatory constitutional provisions of Sections 182 (1) (j) of the CFRN 1999, as amended, the Defendant having presented a forged certificate to the INEC cl claiming to have been educated up to at least school certificate level or its equivalent, is not disqualified and ineligible to be elected into the office of Governor of Anambra State or any other election in Nigeria 5. Whether having regard to the educational non-qualification of the Defendant this honourable court does not have the constitutional and inherent powers to disqualify the defendant from holding any elective office, contesting for any other election or being elected into any other elective office in Nigeria WHEREFORE, the Plaintiff seeks the following reliefs: (a) A DECLARATION that the defendant is not educated up to Secondary school certificate level and presented a forged school certificate purportedly qualifying him as such and therefore not qualified or eligible to stand for National Assembly election, Governorship election in Anambra State or any other election in Nigeria (b) A DECLARATION that the election of the Defendant as senator representing Anambra South Senatorial District in the National Assembly, as well as his previous election into office as Governor of Anambra State is null, void, illegal, unconstitutional and of no effect whatsoever as he was not

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educated up to at least Secondary school certificate level or its equivalent (c) A DECLARATION that the defendant presented a forged certificate to the INEC, claiming to have been educated up to at least school certificate level or its equivalent, consequently his election as Senator representing Anambra South Senatorial Zone in the National Assembly is null, void, illegal, unconstitutional and of no effect whatsoever (d) A DECLARATION that the defendant presented forged certificate to the INEC, claiming to have been educated up to at least secondary school level or its equivalent, consequently, he is not qualified or eligible to contest for or to be elected into the office of Governor of Anambra State or any other election (e) An order of perpetual injunction restraining the defendant by himself, agents, servants and privies, from parading or holding out himself as having been educated up to at least school certificate level or its equivalent. Summons is supported by a 7- paragraph affidavit, with 3 Exhibits marked Exhibits p1, P2 and P3, respectively, deposed to by the Plaintiff himself. Plaintiff has described himself as ‘ ’an electorate duly registered in Aguata LGA of Anambra State’’, who has ‘ ’participated in two previous elections’ ’ to elect, among others, the Defendant into public office, says he is also an information communication technology consultant resident within jurisdiction Concisely, the plaintiff’s claim is that the defendant who is presently the sitting senator, representing Anambra South Senatorial District in the National Assembly also had once been elected into office as Governor of Anambra State, is not and has never been qualified to be elected into those offices nor is he eligible for election into any of those offices or any other elective office, because he is not educated up to at least secondary school level or its equivalent, a conduct that is in clear violation of the constitutionally prescribed educational qualification of a person eligible for election into those offices vide Sections 65 (2) (a) and 177 (d), read together with Sections 66 (1)(i) and 182 (1)(i) of the CFRN 1999, as amended.

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Essentially, Plaintiff has urged the court, among others, to declare the defendant educationally deficient and, therefore, unfit to hold the offices he has held and is currently holding because the certificates he submitted to the INEC for the purpose of clearance to contest for any of the previous as well as the present position were forged. He also wants me to remove the defendant from office as Senator; declare his seat vacant, to perpetually restrain him from holding himself out as one who has a school certificate or its equivalent.

The defendant filed a counter-affidavit wherein he denied the claim and joined issues with the plaintiff. Specifically, he denied that he forged any qualifying certificate or that he tendered a forged certificate to the INEC. That what he tendered to INEC were genuine credentials. He has attached Exhibits D1-D2 to support his assertion. He urged me to as a consequential relief affirm or declare that he is and has always been a person educated up to at least secondary school certificate or its equivalent and that he is and has always been a person qualified to be elected into office as Governor of a state and Senator of the Federal Republic of Nigeria .

Learned counsel to the respective parties filed written addresses, which they each separately adopted as part of their oral submission. I have taken note of the submissions of learned counsel and I shall be referring to them from time to time as the need shall arise. In the meantime, with much regard to the 5 questions the plaintiff posed in his Originating Summons for determination, I am of the view that 3 concise questions can be distilled and set down for determination here. The two simple questions here: 1. Whether the Defendant is educated up to secondary school level or its equivalent 2. And if the answer to question 1 above is negative, whether it can be said that the credentials submitted to the INEC for his clearance to contest the previous

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Governorship and the present senatorial election are forged 3. If the answer to question 2 is not in the affirmative, whether there is any consequential relief this court can grant Every other issue or relief, in my view, is ancillary and consequential. It must be kept in mind that the law of evidence is that he who asserts a fact is the person who under Section 135 (2) of the Evidence Act, is bound to prove it. And under Section 135 (1), whoever desires a tribunal to give judgment in his favour, based on any set of facts must prove that those facts exist, because it is he who, under Section 136 and 137 (1) is bound to fail if no evidence at all were adduced at the end of trial. The former explains who bears the evidential burden of proof while the latter focuses on the general burden of proof. The general burden of proof lies on the plaintiff and it never waivers. He either convinces the court with credible proof of the facts, which belie his claim or he fails. The evidential burden is the obligation to prove specific facts, so that even the defendant could be under such an obligation requiring him to prove specific allegations of fact on which his defence is founded. However, if, in an effort to defend himself, he is able to state facts that effectively controvert specific assertions by the plaintiff, the evidential burden would have reverted to the Plaintiff. And, the plaintiff can only win if he is able to lead further evidence to show that the defence is false and unreliable. Should the plaintiff fail to stave off this ‘’counter-attack’’ by the defendant, his claim will surely be dismissed. Now, the facts constituting the gravamen of the plaintiff’s case, in respect of which the Defendant is bound to controvert in his defence, so as to be seen as having successfully discharged the evidential burden placed on him, revolve around the following depositions in Paragraph 6 of his affidavit in support of the Originating Summons: ‘’6. I. That the Defendant is a known politician in Nigeria, having previously contested for and was

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elected as the Governor of Anambra State and is now elected as Senator representing Anambra South Senatorial Zone in the National Assembly of the Federal Republic ii. That the defendant is presently the Senator representing Anambra South Senatorial Zone in the National Assembly of the Federal Republic of Nigeria, who lives and carries on his business in Abuja with the jurisdiction of this Honourable Court. iii. That the Defendant contested for, was elected and sworn in as the Governor of Anambra State on the 27 th May, 2007. iv. That the defendant also stood for and was elected as the Senator representing Anambra South Senatorial Zone in the National Assembly of the Federal Republic of Nigeria in 2011 and occupied the said office for a term of 4(four) years. v. That the defendant further contested for and was again elected ad the Senator representing Anambra South Senatorial Zone in the National Assembly of the Federal Republic of Nigeria in 2015 and is currently occupying the said office till date. vi. That all material times that the Defendant contested for the foregoing elections, as an electorate duly registered to vote, I voted for him and his various political parties and he won the said election on the contributory basis of my votes. vii. That the Constitution of the Federal Republic of Nigeria is clear on the constitutional requirements for educational qualifications and eligibility for any person seeking to contest Governorship and Senatorial election in Nigeria.

Page | 6 viii. That the defendant did not meet the Constitutional requirements for qualifications and eligibility for any person seeking to contest Governorship and Senatorial election in Nigeria, at all material times that he contested for and won elections into the various offices. ix. That the defendant falsely claimed that he sat for the West African Examination Council in June, 1974 and was issued with the School Certificate with the Certificate No: SC544753 by the relevant authority. A copy of the School Certificate is now produced and marked Exhibit P1. x. That by the false School Certificate (Exhibit P1) being claimed by the defendant he claimed to have made the following falsified results/grade thus: English Language 7 Pass English Literature 4 Credit Religious Knowledge 7 Pass. Economics 4 Credit Statistics 6 Credit Mathematics 6 Credit Physics 6 Credit Chemistry 6 Credit xi. That the foregoing false claims of the defendant elicited disenchantment from the members of the public as a result of a group of social crusaders wrote a letter to the West African Examination Council(WAEC) requesting to know the authenticity or otherwise of Exhibit P1. xii. That the WAEC and they replied vide its letter dated 12 th February, 2014 with reference No:L/SED/50/R&CERT stating that Exhibit P1 is fake and does not emanate from them; a copy of the letter if now produced and marked Exhibit P2.

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xiii. That contrary to the false information supplied by the defendant, he was not “educated up to at least School Certificate level or its equivalent” xiv. That the defendant deliberately presented false or forged Certificate purportedly claiming to be “educated up to at least School certificate level or its equivalent” at various times he contested for and won elections.

The Defendant, in reaction, deposed in Paragraph 8 – 22 of his counter-affidavit that:

11. That contrary to the depositions of Uchenna Nnadi, “at all material times” that I contested for the above elective positions, I was credibly qualified to stand for the various elections and I did not falsify nor lie about my educational qualifications. 12. ……………………………………………………………… ………… … 13. ……………………………………………………………… ……………. 14. That contrary to the depositions of Uchenna Nnadi, I had never claimed or done any act suggesting or holding myself out as having any school certificate with Certificate No: SC544753 purported issued by the west African Examination Council which the plaintiff purported attached as Exhibit P1 . 15. That furthermore, Exhibit P1 does not emanate from me as I do not have any connection whatsoever with the said School Certificate.

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16. That at all material times I contested for and won elections as Governor of Anambra State or Senator representing Anambra South Senatorial Zone, I never submitted Exhibit P1 to the relevant authorities including the Independent National Commission nor claimed to have any such results/grade as: English Language 7 Pass English Literature 4 Credit Religious Knowledge 7 Pass. Economics 4 Credit Statistics 6 Credit Mathematics 6 Credit Physics 6 Credit Chemistry 6 Credit

17. That contrary to the depositions of Uchenna Nnadi, I attended Union Secondary School. Awkunanaw, , sat for Senior School Certificate Examination (May/June 1974) with the Examination No. 05465/089, was issued with the statement of result No. 01246 18. ………………………………………………………………… 19. That at various times when I contested for and won elections as Governor of Anambra State, Senator representing Anambra South Senatorial Zone, I duly relied upon and declared my true result to be as aforestated (sic) in my Statement of Result No. 01246, which showed that I was ‘’educated up to at least school certificate level or its equivalent’’ 20. That contrary to the claims of the plaintiff, I also attended and obtained Master’s and doctorate degrees from Concordia University, Canada and Buxton University in the United Kingdom, respectively and have consistently attached the proofs to my INEC FORM C.F. 001 21 That in 2010 when I contested for the post of Senator… I submitted my correct result to the INEC and was

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cleared to stand for the election… A copy of the INEC C.F.001 containing all my educational and personal particulars is now attached as Exhibit D1 series 22. That also in 2015 when I contested for the post of Senator… I equally submitted my correct result to the INEC and was cleared to stand for the election… A copy of the INEC C.F.001 containing all my educational and personal particulars is now attached as Exhibit D2 series

A comparison of the extracts from the depositions in the two affidavits – affidavit in support and counter - affidavit of the defendant – as re-stated above, clearly points at the direction in which the scale of proof tilted. The defendant was not even expected to do more than denying the accusation of forgery if it had not been supported by the Plaintiff’s Exhibit P1 and P2 (a photocopy of some WAEC Certificate and a letter from a certain West African Examinations Council, respectively). But having attached those exhibits, it became imperative for the defendant to proffer evidence that is sufficient to interrogate the contents of the plaintiff’s said exhibits. Thus, in my view, the Defendant strove, not only to controvert the plaintiff’s claims as presented in the contents of those two documents when he denounced ownership of WAEC result in Exhibit P1, with No. SC544753, attached to the plaintiff’s affidavit in support but he went a step further by attaching two bundles of documents marked Exhibits D1 series and D2 Series, which at pages 26 and 11, respectively, has a different secondary school result, with No. 05465/089. Again, although the name of the candidate (UBA EMMANUEL NNAMDI) and year the result was obtained (1974) as in Exhibit P1 corresponds with that tendered by the defendant at P. 26 of Exhibit D1 Series and P. 11 of Exhibit D2 Series, the schools from where the candidate graduated are shown to be different. In the Defendant’s Exhibit D1 and D2 Series, it is UNION SECONDARY SCHOOL, AWKUNANAW, but in the Plaintiff’s Exhibit P1 it is BOYS

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HIGH SCHOOL, AWKUNANAW. The subjects enrolled for and the grades obtained also differ remarkably.

Even these differences alone were sufficient to contradict and cast a doubt on the veracity of the plaintiff’s allegation against the defendant and thereby return the evidential burden to the shoulders of the Plaintiff. But the defendant appeared to have gone a further step to rub it in on the plaintiff’s assertions with his further depositions in paragraphs 23, 24, and 25, respectively of the counter-affidavit. These depositions, in my view, effectively tilted the scale of proof against the plaintiff, requiring him to provide further countervailing evidence so as to negative the defendant’s counter-assertions. The said paragraphs of the defendant’s counter-affidavit read as follows:

‘’23. That INEC Form 001 is the authentic personal particulars or details of any person seeking election into the office of Governor or Senator in Nigeria 24. That the Plaintiff did not conduct any search at the office of the INEC to find out my correct result or verify his claims that I was not ‘’educated up to at least secondary school level or its equivalent’’ 25. That contrary to the deposition of Uchenna Nnadi, the letter purportedly written by the WAEC dated 12 th of February, 2014, with reference No. L/SED/50/R & CERT attached as Exhibit P2 does not relate to me as the result forming the basis of the inquiry does not belong to me’’

I do agree with the submission of learned counsel to the defendant, at page 4 of his written address, to the effect that the allegation by the plaintiff that the defendant presented a ‘’forged school’’ certificate to the INEC in order to secure clearance to contest the various elections into public office as Senator and Governor, respectively , is of a criminal nature and ought to be

Page | 11 proved beyond reasonable doubt, given that forgery is a criminal offence under Section 366 of the Penal Code Act, Laws of the FCT. In this connection, Section 138. (1) Of the Evidence Act provides that:

‘’ If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal it must be proved beyond reasonable doubt.’’

In my view, the effort put up by the Plaintiff to establish forgery of WAEC certificate against the defendant as shown in his affidavit and the exhibits attached is far beneath the threshold of ‘’proof beyond reasonable doubt’’. On the facts as presented by both sides, it is actually not difficult to illustrate how this could have been better achieved, instead of resorting to the procuration of Exhibits P1- P6, respectively, each and severally from very doubtful sources. Keeping in mind that the defendant was duly served with the counter-affidavit, he must be deemed to have read and digested its content and seeing that the defendant is relying on INEC and UNION SECONDARY SCHOOL, AWKUNAWNAW, he should have conducted due diligence checks with the INEC and the UNION SECONDARY SCHOOL. Having failed to do this, it means the only source of his information are the documents he obtained from a source he described in his Paragraph xi as ‘’a group of social crusaders’’ who ‘’wrote to the West African Examinations Council’’ to confirm the authenticity of Exhibit P1 and obtained a reply attached as Exhibit P2, as well as a copy of a news report by Sahara Reporters, a popular on-line media, which is also attached as Exhibit P3. In the first place the name of the ‘ ’group of social crusaders’’ is not supplied by the plaintiff in any other way than what is endorsed as the addressee in the purported letter from the WAEC, Exhibit P2 as follows:

‘’Public Agencies , 57. Peel Road, Wembley Middlesex HA 9 7LY

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United Kingdom’’

The authenticity of this ‘’Public Agencies’’ is shrouded in doubt as even the source from where the letter emanated from is not known. In Paragraph 4 of the Plaintiff’s affidavit, he had deposed that:

‘’4. That where the facts deposed to are not personally known to me or within my personal knowledge, I have been informed by my counsel Ezenwa Ibegbunam and/or Oladimeji Ikengba, Esq during the meeting in chambers on the 22 nd May, 2017 at about 2.40pm…’’

Regrettably the Plaintiff has spared no effort to explain whether he is a member of the ‘’Public Agencies’’ of the UK, addressees of the letter Exhibit P1 or whether the Exhibit is part of the information supplied to him by his learned counsel. Whichever the source, I am of the view that neither Sahara Reporters nor ‘’Public Agencies’’ is the appropriate source from where to obtain information to prove the plaintiff’s allegations beyond reasonable doubt; particularly having regard to the fact that the defendant himself has revealed what could be the right source from where to confirm or deny his counter-assertions, which is the INEC or UNION SECONDARY SCHOOL, AWKUNAWNAW. This reasoning has been well articulated at page 7, paragraphs 3.8 – 3.11 of the written submission of learned counsel to the defendant and I agree with him, especially as the defendant by this means has indicated that he never submitted Exhibit P1 – the purportedly forged WAEC certificate – to the INEC for the purpose of clearance to contest election. Rather, that what he submitted to the INEC is comprised in Exhibits D1 at page 26 and Exhibit D2, page 11, respectively.

Had the defendants gone to the INEC or UNION SECONDARY SCHOOL, AWKUNANAW to confirm the authenticity of the contents of the defendant’s claims in Pages 26 and 11 of his Exhibits D1 series and D2 series respectively, perhaps the result of his research or investigation put in a further and better affidavit in support, might have changed the narrative by throwing back the evidential burden of proof on the shoulders of the defendant.

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Having failed to take this extra step, he must be deemed as having admitted the truth of the defendant’s deposition on the point. See, Obulor vs. Obor (2001) FWLR (PT.47) 1004. Indeed, the practical out-working of the ambulatory nature of the evidential burden of proof, especially in civil cases, whether or not the standard is criminal or otherwise is illustrated in Section 137 of the Evidence Act, which provides that:

‘’137. (1) In civil cases the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgement of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings. (2) If such party adduces evidence which ought reasonably to satisfy a jury that the fact sought to be proved is established, the burden lies on the party against whom judgement would be given if no more evidence were adduced; and so on successively, until all the issues in the pleadings have been dealt with.

It is very obvious that ‘’no more evidence’’ was adduced or produced by the Plaintiff to interrogate or otherwise controvert the contents of the defendant’s Exhibit D1 Series and D2 Series, attached to his counter – affidavit. It is therefore, in my view, appropriate to hold that in the absence of any contradiction of the credentials submitted to the INEC by the defendant, he is educated up to at least secondary school level or its equivalent.

From the forgoing findings, therefore, I feel justified in coming to the final conclusion that all the three questions for determination as set out earlier are resolved in favour of the defendant. The plaintiff has failed to discharge the onus of proof placed on him, to prove his claim, generally on a preponderance of evidence and the specific allegation of forgery against the defendant, beyond reasonable doubt. I find no merit in this case. It is vexatious, scandalous and constitutes a gross abuse of the judicial process. It is, therefore, hereby dismissed. Finally, based on the facts as found and pursuant to inherent power conferred on this court in Order 46 Rule 1 of the Rules of this court, it is hereby

Page | 14 declared that the defendant is and has always been eligible to contest elections into and hold office as Governor of a state, senator of the Federal Republic of Nigeria or any other public office requiring that level of education as the minimum qualification for any aspirant into it.

Valentine B. Ashi Hon Judge

APPEARANCE: Ifeanyi Okonkwo, Esq (Holding the brief of Ezenwa Ibe, Esq. ) for the Plaintiff. Emeka Obegolu,Esq. (with Ms. Onyinye Princess James) for the defendant.

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