Falsification Of Age Is Not Triable Via Affidavit Evidence By Ogbom Goodluck, Esq

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 questions on 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 age?

It is an act of either Subtracting time from one’s age or adding
time to one’s age which is called forgery.

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 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 vs
A.G. RIVERS STAYE (2008) 6 NWLR (PT. 1084) 612. Stated clearly, 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 in need be. This is because, Gov. Wike
is clothed with immunity (section 308 of the constitution) and by
that position, 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 vs MUSA (2003) 3 NWLR
(Pt. 806), 72, NPP vs 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 30years 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 30years 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 Ikpeazu v Dr. Ogah, which has to do with forgery and
was also principally and vehemently fought on section 31(5) of the
same Electoral Act, which empowers the Federal High court to
disqualify candidates via Originating summons, the Supreme court of
Nigeria described the judgement of the Federal High which removed
Okezie, as a storm in a teacup, which shouldn’t have been
entertained in the first case.

CAVEAT; this is Nigeria. If the CJN could be removed with an
exparte other not known to law, anything is possible in this part
of the world.

Ogbom Goodluck, Esq, is a Port Harcourt based
Legal Practitioner.