OKEY UGWU
Governor Peter Mbah’s defence at the Election Petition Tribunal seems to be running out of gas. There was this assumption in social circles that the hiring of certain lawyers can turn around any case. But Peter Mbah’s case is proving this assumption to be wrong because as you keep expecting this legal talisman to be injected into the mix at the Tribunal, reality continues to indicate that there is nothing new to offer.
At the resumed sitting of the Tribunal in Enugu this week, Wole Olanipekun and Tochukwu Maduka, counsel for Mbah and the PDP respectively argued that the FCT. High Court had resolved the issue of alleged certificate forgery as there was a leave of appeal and that Sections 177 and 182 of the Constitution had settled the matter.
Something can’t be placed on nothing. As I have argued in my previous writings, the ingredients for Res Judicata are clear and uncomplicated and unambiguous. A thousand Olanipekun’s cannot transmogrify the judgement of the FCT. High Court Abuja to any utility for Peter Mbah. Even if there is an appeal arising from that matter before the Supreme Court, any reference to it will consistently come to naught, to absolutely no issue. What is not cannot be. As far as the law is concerned, you cannot shave a man in his absence (apologies, MKO Abiola.) For a person to be affected or be bound by the decision of a court, they must be joined as a party. Chijioke Edeoga was not the defendant in that matter and therefore that defence cannot hold.
Once the parties to a decided case are not the same and the subject matter is not the same, a multiplicity of issues can arise from it in subsequent actions, and the Tribunal knows this. For instance, an interested party might seek an order of mandamus to compel the Inspector General of Police to investigate Peter Mbah with a view to prosecuting him for forgery. Will Peter Mbah plead Res Judicata to the police? Any such plea will fail because the action Peter Mbah took in the FCT. High Court is a civil action in which his remedy lies in damages in the form of monetary compensation based on balance of probabilities. His remedy can also come by way of a public apology by whomsoever he claims libeled him, even when it is becoming clear that the Defendant was procured. But a mandamus targets getting a criminal to face the law. It is the duty of every citizen to report the commission of a crime by anybody to the police. It is also an offence to omit to report the commission of a crime by anybody to the police. Indeed, the NYSC should have invited the police to arrest Peter Mbah for forgery.
A competent individual may also seek a fiat to prosecute Peter Mbah for the crime of forgery. The reader should note that none of these listed legal possibilities will succeed if Res Judicata were applicable because it functions as an estoppel.
The cavalier manner in which Chief olanipekun announced to the Court that there is a leave for appeal reveals a lot more than the eyes can see. It is an indication that the entire defense team is privy to the action in the first place. Otherwise, how would they know that there is leave for appeal even when such, as was indicated by the Petitioner’s lawyer was not in the Courts file? In effect, they had been working together. It goes to show how far Governor Mbah has gone to shield himself from his self-inflicted travail, and the length he has gone to abuse the legal machine.
Then what matter did those two sections of the Constitution cited by defence counsels settle? Section 177 of the 1999 Constitution (as amended) says (I quote for the purposes of clarity) that a person shall be qualified to contest for election to the office of Governor of a State if-a. he is a citizen of Nigeria by birth. B. he has attained the age of thirty-five years. c. he is a member of a political party; and d. he has been educated up to at least School Certificate level or its equivalent.
Then section 182 (j), which is distinct from that referred to above, that he has presented a forged certificate to the Independent National Electoral Tribunal. (I have left Sections a.- i because they are long and irrelevant.)
For Section 177(d), the possession of a minimum qualification does not wash the culprit of the pestilence of forgery because in Isa Mohammed vs Mohammed Garba Gololo, the Defendant, just like in the instant case, presented forged degree certificates of Bachelor of Science(B.sc) and Masters in Business Administration (MBA) from Lagos State University to INEC, alongside a forged NYSC discharge certificate.
Upon a challenge by his opponent who lost the election and brought the case to the Tribunal, and later appealed to the Court of Appeal, Lagos State University not only denied issuing him the said certificate but averred at the Tribunal that they do not run such a programme. The NYSC also denied issuing him a discharge certificate since he was neither mobilized nor did he participate in the programme.
It was then contended for him that since he possessed the minimum educational qualification which is School Certificate, he had no legal impediment since the certificates cited were mere supplusage. (The reader should note that it has also been pleaded for Mbah that NYSC discharge certificate is not a requirement to contest the governorship election.) The court held that “from the clear provisions of Section 66 of the 1999 Constitution, there is no doubt that presentation of forged documents to INEC by a candidate for any election under the Constitution, including House of Representatives election, disqualifies him, and that it is regardless whether such candidate possessed the qualification set out by Section 65 (now Section 66(i) of the 1999 Constitution.)
Mbah’s lawyers indicated at the hearing, that they intend to call 48 witnesses, and the question becomes: for what purpose? Is it to make Mbah’s fake certificate genuine and to reverse the genuine copy prepared for him by the NYSC as fake? This is impossible even if Olanipekun were a legal alchemist. There is only one useful track one can glean for a lawyer in the situation Mbah’ counsels are. Even though this will not win the case for him, it can serve a purpose. Assuming hypothetically at the end of trial that it is established that some people in the Corps conspired to give Mbah a fake certificate with the intention of damaging him politically and otherwise which fact he was not aware of, this defence can help him escape legal jeopardy in the event that someone or the State proceeds against him in future under the Criminal Code. This is possible because there is a distinction between forgery under Section 66 (1) of the 1999 Constitution as amended and forgery under the criminal code. In the case of forgery under the Criminal Code, mens rea (guilty mind) is an overriding ingredient. To convict an individual under this heading, it must be proved that he had the intention to forge a document. The mere fact of his possession of a document or the submission of a forged document will not lead to a conviction. The prosecution must establish that he had the intention to act the way he did. The absence of this will vitiate any action.
But if the State prosecutes Mbah for forgery under the Criminal Code, will mens rea be difficult to establish? Not at all because the fact of his having been appointed Chief of Staff to then Governor Chimaroke Nnamani while still serving proves to all reasonable minds that he knew what he was doing and therefore has a plausible reason not to complete his Service, and then to procure a forged certificate.
As far as Mbah’s case is concerned, forgery under Section 66 (i) of the Constitution is under a strict rule. Once you have submitted a fake document to INEC, you stand disqualified. The Court of Appeal in Isa Mohammed Wabu & anor vs. Hon. Mohammed Garba Galolo & Ors., earlier cited held that the Petitioner does not have to prove that the Defendant ‘’was the one who forged the said document. All they need to prove beyond reasonable doubt, is that the said documents he presented were forged and in proving the presentation of the forged certificate to INEC, the person asserting the positive does not have the duty to prove that the person who presented the forged certificate was guilty of forgery, but that he made the presentation in the first place, and that the certificate has been proved beyond reasonable doubt to be forged.’’
The NYSC has gone to great length to establish the fact that the document Mbah submitted to INEC was forged. They are bemused by Mbah’s theatrics and legal antics. This will be the first time a criminal will commit a crime and head on a collision course with the institution involved. What is playing out is akin to an individual putting it to a University, say University of Nigeria that his forged degree certificate is genuine. The University disclaims him and he insists that the fake certificate with fake serial number and forged signatures of both the Vice Chancellor and The Registrar are genuine. He activates several court actions and conjures the Ghost of Rotimi Williams in addition to foreign legal experts to come to his defense.
What an individual can contest is his right to a degree and not the authenticity of a forged degree certificate. It is possible that credits earned in a University may be denied a person for some internal issues and he seeks a restitution to his rights in court. But, to, in an act of brazen alchemy swap a forged certificate with the original is taking brusque and grotesque daring to its limit. Nigeria we hail thee!!!
