As Enugu Governorship Election Petition Tribunal Affirms Mbah’s Election…

Charles Okereke writes that the verdict of the Enugu State Governorship Election Petition Tribunal in the petitions challenging Governor Peter Mbah’s election on the ground of his National Youth Service Corps certificate is sound and in tandem with the nation’s electoral laws, evidence adduced before the panel, and decided cases by both the Court of Appeal and Supreme Court.

Last Thursday’s verdict of the Enugu State Governorship Election Petition Tribunal on the ground one of the petition filed by the Labour Party (LP) governorship candidate, Hon. Chijioke Edeoga, challenging the election of Governor Peter Mbah, could not have come as a surprise to anyone who followed that case or understands the standard of proof needed to establish a crime.

Ground one of the petition is that Mbah was not qualified to contest the election, having allegedly presented a forged National Youth Service Corps (NYSC) discharge certificate number A808297.

But politicians will always be politicians, trying to reduce a serious matter like forgery to pedestrian arguments, and supporters will always be supporters, pandering to emotions. They even claim that NYSC’s Director General had disclaimed Mbah’s certificate on national television (not even in a court of law), and that was therefore final, NYSC being the issuing authority!

It is just as absurd as saying because the Independent National Electoral Commission (INEC) is the issuing authority of Certificates of Return, therefore, election outcomes should never be challenged in court.

It would mean that we all are at the mercy of certificate-issuing institutions, including our colleges and universities, even in clear cases of ineptitude and complicity.

But the law, being aware of human propensity for both error and mischief, made provisions to cure any mischief, relying on investigations by security agencies, and trial by the courts based on oral and documentary evidences, and not sheer emotions and propaganda.

In the extant case, the tribunal, relying on various authorities, including decisions of the Supreme Court such as in Oke & Anor v Mimiko (2013) LPELR – 20645, said that both the petitioners and respondents failed to comply with Paragraph 4(5) (b) of the First Schedule to the Electoral Act, 2022, in respect of subpoenaed witnesses, vis-à-vis their failure to frontload witness depositions along with the petition and responses even when the subpoenaed witnesses were available to the parties at the time of filing the petition and replies.

Also relying on various authorities, including the decision of the Court of Appeal in Ogundehin v Olubowale (2016) and the Supreme Court in Agi v PDP (2016), the tribunal also held that the claim that Mbah submitted a “forged” NYSC certificate to aid his qualification could not stand as without the said NYSC certificate, he “is more than qualified to contest to the office of Governor in Enugu State”; especially against  the backdrop that Mbah made no reference to his NYSC certificate in his Form EC9, that is, in the affidavit deposed pursuant to his submission at INEC, thus rendering the NYSC certificate an orphan by law in this context.

Yes, the tribunal held that “to prove forgery, two documents must be produced, that is, (1) the document from which forgery was made and (2) the forged document”.

This is a well-known standard. Ancillary to this is that NYSC, while claiming that the certificate they ought to have issued Mbah was a “6 series”, and not “8-series”, did not and could not have denied ownership of certificate number A808297, which Mbah holds because the agency’s certificates are printed by the Nigerian Security Printing and Minting Company (NSPMC) with security features such as serial numbers, watermark, etc. This was essentially the more reason the onus was on the agency to have produced the original of the certificate number A808297 to be placed side-by-side the one Mbah holds in order to establish forgery.

The option was for the NYSC to have produced another authentic owner of the certificate with that particular serial number other than Mbah!

But even the more compelling which point some commentators miss is that the tribunal, despite the aforementioned positions, still delved into the kernel of the alleged forgery but found no merit in the claim. And that should actually not come as a surprise!

To start with, Edeoga’s star witness/PW1, Ibrahim Abdul Muhammad (Director of Corps Certification, NYSC), ended up vindicating Mbah in his admissions in his Statement on Oath. He admitted that Mbah was mobilised for service with NYSC Call Up No. LA/FRN/01/800351, was deployed to Lagos State, was initially posted to the Nigeria Ports Authority (NPA) for his primary assignment where he was rejected, was reposted to Udeh & Associates (a law firm), applied and got NYSC’s approval to suspend his service to go for his Bar Part II (Bar Final) programme at the Nigerian Law School, applied for reinstatement after the programme, was reinstated through an NYSC letter dated 7th May 2003 (reference number NYSC/DHQ/CM/27/20) to “continue his service from where he stopped”, and reposted again to Udeh & Associates via a letter dated 26th May, 2003.

The NYSC only claimed that they could not have issued Mbah’s discharge certificate because: (1) They did not have any record to show that he actually completed his primary assignment at Udeh & Associates; (2) He allegedly did not participate in the weekly Community Development Service (CDS); and (3) He did not sign against his name in register where his set signed and collected their certificates.

Meanwhile, a simple attention to Section 153 (1) of the Evidence Act, Udoma v. Umana (2016), Abubakar v. Yar’Adua (2008), Buhari v. Obasanjo (2005), and Nwobodo v. Onoh (1984) will clearly show that where issues of criminality arise in civil proceedings, the nature of proof must be beyond reasonable doubt. And the tribunal was very explicit on this standard of proof.

There was no way Edeoga’s forgery claim could have stood on the strength of NYSC testimony/evidence. For instance, in determining whether or not Mbah actually completed the remaining four months after reinstatement, the NYSC never referred to Udeh & Associates where they admitted in Ibrahim Mohammad’s Statement on Oath that they reposted him for the purpose.

The NYSC did not also dispute the exhibited clearance letters dated 26th June, 29th July, and 8th September 2003 issued to Mbah by Udeh & Associates in respect of those months and the final clearance dated 16th September 2003 for issuance of his NYSC certificate.

Many commentators do not even know that NYSC also paid Mbah’s allowances for each of those months on the strength of those letters. Udeh & Associates was in court and equally testified affirming not only the authorship of the clearance letters as exhibited, but also that Mbah served till September and came to the office to present his discharge certificate and to thank the firm. So, which other records could NYSC be looking for?

Again, Section 11 of the NYSC Act is clear that the NYSC “shall” on the completion of service issue every Corps member a certificate of national service. “Shall” in law means “compulsorily”. But here is NYSC giving the impression at Paragraph 14(i) of Ibrahim Mohamad’s Statement on Oath that it did not fulfil that statutory obligation to Mbah as a penal measure. Yet they did not tender any record/register to show that he missed any CDS session. They did not also tender any evidence of query, investigation, hearing, report, indictment, and communication of any sanction whatsoever in that regard to back their claim!

NYSC equally failed to exhibit the said certificate collection register where Mbah purportedly did not sign. But by the way, common sense clearly dictates that Mbah could not even have signed the same register as his mates since they had long completed their service and left before he returned from the Law School to “continue from where he stopped”!

Meanwhile, it is  worthy to note that a court does not establish forgery in isolation of investigation by a security agency, and the court is not in itself an investigative institution. In this instance, the Department of State Services (DSS) investigation and findings as contained in the Statement on Oath by the agency’s Deputy Director of Operations and Strategy, Mr. Yahaya Isa Mohammed (DW2) seriously indicted NYSC and recommended that it withdraws all disclaimers of Mbah’s discharge certificate.

Perhaps the most significant finding was that this same NYSC lost Mbah’s file at a point and had to create a temporary one for him.

Whereas NYSC’s response to his application for suspension of service to go for his Bar Part II programme bears file number LA/10/1532, the agency’s response to his application for reinstatement bears file number LA/01/1532/T, with “T” standing for “temporary”.

Again, perhaps in a bid to cover up their ineptitude or complicity, (or both), NYSC had claimed at Paragraph 14 (c) (k) (ii) of Mohammad’s Statement that they did not issue “8 series” certificates (where Mbah’s certificate falls) to Corps members in Lagos in that year and tier. But DSS’s investigations showed that NYSC indeed issued “8 series” certificates, not only in Lagos that year and tier but also in other states!

In fact, the DSS averred that NYSC could not account for 12 of their “8 series”, namely A808297 to A808308. They could not trace to whom or in which state/states they were issued. It is to be noted that certificate number A808297 is Mbah’s certificate.

So, it is not in doubt that Mbah’s NYSC’s number exists, the reason they should have produced the original copy if what Mbah holds is a forgery!

Therefore, the DSS maintained that “the failure of the NYSC to maintain a proper record keeping system was the cause of its inability to trace Peter Ndubuisi Mbah’s initial certificate”, saying “it would be wrong for the NYSC to blame Peter Ndubuisi Mbah for their own failure in record keeping”.

NYSC could not also produce in court the purported “6 series” certificate they claimed should have been issued to Mbah. They rather claimed that they had shredded/destroyed it, a claim the DSS seriously faulted.

Interestingly, the only discharge certificate produced in court by the petitioners was a certified true copy of certificate number A808297, which Mbah holds.

Ironically, it was certified by the same NYSC! That certification alone negates/destroys forgery allegation, as NYSC could not have certified what was not in their custody!

In a case where standard of proof should be beyond reasonable doubt, are the naysayers by any means saying documents NYSC failed to tender before the court, the fact that they paid Mbah’s allowances for contentious months, etc. and importantly the mindboggling findings by the DSS which NYSC did not refute are not sufficient grounds of doubts in the mind of tribunal and justify their refusal to agree with the petitioners that Mbah’s NYSC discharge certificate was forged?

-Okereke writes from Enugu