Gazetting a Deed Poll: The Implication of the Supreme Court Decision in the Case of PDP & ORS v. DEGI-EREMIENYO & ORS (2020) LPELR-49734(SC) on Aspirants/Candidates ahead of the 2023 General Election

Associate Professor Ibrahim Abdullahi, SAN

                       

The learned law lords of the Supreme Court of Nigeria had in their usual brilliance brought to the fore yet again a change in the Nigeria’s political landscape and indeed our electoral jurisprudence following their landmark judgment in the case of PDP & ORS v. DEGI-EREMIENYO & ORS (2020) LPELR-49734(SC). In this case, the apex court held that it is clearly fraudulent for one person to allegedly bear several names that he uses variously, chameleonically to suit the changing environment and that the Justices of the Court of Appeal  (lower court) erred when they held that the affidavit of correction and confirmation of name sworn to by the 1st  Respondent on 9th  August 2018 and the Chronicle Newspaper advertorial placed by the 1st  Respondent himself explaining the discrepancies were not enough and finally validated the requirement for a Deed poll as the final terminal step for the regularization and correction of a change of name in Nigeria. To this end, the apex court held thus; 

…The trial Court also correctly stated the procedure for regularization and correction. Its statement at pages 575 and 576 “that affidavit of change, correction and confirmation of name has to be by deed poll and not mere deposition” is adverse to the 1st, 2nd and 3rd respondents. This specific point in the decision of the trial Court was not challenged. It subsists and remains binding on the parties…

This decision of the apex court under consideration is indeed a way of sanitizing the polity and ensuring that citizens comply with all the relevant laws within the sphere of political environment. The popular saying that politics is a dirty game may well be history in due course by sanitizing the players.  In the case of CPC v. OMBUGADU (2013) 55 NSCQR 575  at page 582, N.S Ngwuta, JSC stated thus;

“There is a popular saying that politics is a dirty game.  I do not share this view.  It is the players who are dirty and they inflict their faith on their members and by implication, on the society.  Politicians must learn to play the game of politics in strict compliance with its rules and the rules of organized society”

The meat and substance of this short write up is to look at the possible implication(s) of the requirement of gazetting of a Deed Poll as the terminal stage for the regularization and correction of a change of name in Nigeria as decided by the Supreme Court of Nigeria in the case of PDP & ORS v. DEGI-EREMIENYO & ORS (Supra) and also provide some possible antidotes for aspirants/candidates ahead of the forthcoming 2023 General Elections. 

Election matters are sui generis and neither seen as civil proceedings in the ordinary sense nor as criminal proceedings and time is always of the essence to keep the interest of a candidate in the political contest alive. See the case of OKADIGBO & ORS VS CHIDI & ORS (2015) 3 MJSC (PT II) 123 @ 139. The rights of a litigant is curtailed by a time frame, after which, the legal maxim, ubi jus, ubi remedium may not apply. 

Section 31(5) of the Electoral Act empowers any person who has reasonable grounds to believe that any information given by a candidate in the affidavit i.e. (Form CF001) submitted by that candidate is false to file a suit at the Federal High Court, High Court of a State or FCT against such person seeking a declaration that the information contained in the affidavit is false. Section 31(5) and (6) of the Electoral Act 2010 (as amended) is therefore the engine relating to false declaration of an information. For clarity, the section provides; 

31(5) – Any person who has reasonable grounds to believe that any information given by a candidate in the affidavit or any document submitted by that candidate is false may file a suit at the Federal High Court, High Court of a State or Federal Capital Territory against such person seeking a declaration that the information contained in the affidavit is false. 

6. If the court determines that any of the information contained in the affidavit or any document submitted by that candidate is false, the court shall issue an order disqualifying the candidate from contesting the election.” 

The non-qualification of a candidate to contest an election conducted under the Electoral Act is, indeed, the first ground under section 138(1) (a) of the Electoral Act 2010 (as amended) for presenting an election petition before a lower tribunal. It can therefore be a pre – election as well as post – election matter. In the full complement of the Supreme Court consolidated cases of PDP V. SAROR & ORS SC. 381/2011; SUSWAN V. SAROR & ORS SC. 383/2011, their Lordships held as follows; 

… It is not correct that the matter of the qualification of a candidate is a pre-election issue and for the regular court alone. Therefore, the Governorship Election Petition Tribunal had jurisdiction to entertain a petition founded on the grounds of alleged presentation of forged Certificate and deposition of false information on Form CF001 submitted by the 4th Respondent to the 3rd Respondent. The petition brought upon Section 138(1) (a) of the Electoral Act 2010 and Section 182(1) (i) of the 1999 Constitution do not require the prior conviction of the 4th Respondent on a charge of forgery before the tribunal below will be vested with the jurisdiction to entertain the petition which alleges presentation of a forged Certificate by the 4th Respondent to INEC… 

In other words, a person who wishes to challenge the election on the basis that the winner was not qualified to contest the election has umbrage in Section 138(1) (a) of the Electoral Act. That is to say, where a person failed to take advantage of Section 31 (5) and (6) (supra) in the High Court, he can still approach the Election Tribunal under Section 138 (1) (a) thereof.

Preparations are on course ahead of the 2023 general elections and political parties are already alive to this reality and warming up their candidates for the general election. By Section 31 (1) of the Electoral Act, every political party shall not later than 60 days before the date appointed for a general election under the provision of the Act submit to the Commission in the prescribed forms the list of the candidates the party proposes to sponsor at the elections and by subsection 2, the list or information submitted by each candidate shall be accompanied by an affidavit sworn to by the candidate at the High Court of a State, indicating that he has fulfilled all the constitutional requirements for election into that office. The Independent National Electoral Commission shall, within 7 days of the receipt of the personal particulars of the candidate(s) publish same in the constituency where the candidate intends to contest the election under section 31(3). 

One area of interest is that a person may apply to the Commission for a copy of nomination form, affidavit and any other document submitted by a candidate at an election and the Commission shall upon payment of a prescribed fee; issue such person with a certified copy of the documents within 14 days under section 31(4) of the Electoral Act 2010 (as amended). It is from these documents that any person who has reasonable grounds to believe that any information contained in the affidavit or any document submitted by that candidate is false may file a suit at the High Court of a State or Federal High Court against such person seeking a declaration that the information contained in affidavit is false under section 31(4) of the same Act.

A Deed Poll is otherwise known as a Deed of Change of Name used in either renouncing and or abandoning the use of former name(s) in favour of new name(s) at all times which must be drawn up and executed in the presence of witnesses. It can also be used to renounce and abandon the use of former name(s) and use the new name(s) at all times, change forenames, surnames and middle names as well as add or remove names, rearrange current forenames or alter spellings etc on any document(s) including official records. It is in vogue globally. For instance, British singer and song writer, Elton John was once Reginald Kenneth Dwight and super model Elle Macpherson was formally known as Eleanor Nancy Gow to mention but a few. 

On the other hand, a gazette is an official publication of the Federal Government of Nigeria or a State in which the official acts of the government e.g. appointments, notices and other legal matters are reported. As documentary evidence, the contents of a Gazette by law, is prima facie proof of any fact of a public nature, which the gazette is intended to notify. It gives credibility, weight or cogency and acceptability on matters dealt with upon production. See the cases of OUR LINE LTD v. SCC (NIG) LTD & ORS (2009) LPELR-2833(SC) and SOBOWALE & ORS v. GOV OF OGUN STATE & ORS (2018) LPELR-43735(CA). What is more, section 106(a) (i) of the Evidence Act 2011 provides thus; 

Acts of the National Assembly Laws of the House of Assembly of a State or bye laws of Local Government Council, proclamations, treaties or other acts of a State, Orders, Notification, and Nominations of the Government of the Federation, State or Local Government in Nigeria.” 

(i) Which appear in the Federal Gazette or the Gazette of a State, by production of such Gazette and shall be prima facie proof of any fact of a public nature which they were intended to notify…

Therefore once a deed poll is gazetted, judicial notice of same can be taken as any fact (change of name) stated and or contained in the gazette or official gazette constitutes a notice to the whole world. In the case of OSITA C. NWOSU V. IMO STATE ENVIRONMENTAL SANITATION AUTHORITY & ORS (1990) 2 NWLR PT. 688 PAGE 621, Nnaemeka-Agu JSC held that: “…Any fact stated in official gazette constitutes a notice to the whole world…” At the Court of Appeal of Nigeria level, the Justices of the Court of Appeal referred publication in a Gazette as a constructive global notice. See the case of NWOSU V. IMO STATE ENVIRONMENTAL SANITATION AUTHORITY & ORS (1990) 2 NWLR (PT 135) 688 AT 721, PARAS A – B; 738, PARAS E – H.

Judicial notice can be taken by the Court in respect matters contained in a gazette (and as applicable to a change of name). The Court of Appeal of Nigeria defined Judicial notice in GLOBAL SOAP AND DETERGENT INDUSTRY LTD. V. NAFDAC (2011) LPELR – 40202 (CA) thus; 

Judicial Notice is defined to refer to facts which a judge is called upon to receive and act upon either from his general knowledge of them or from or from inquires to be made by himself for his own information from sources to which it is proper for him to refer, it also refers to such facts which a Court mandatorily takes as proved by the operation of the Law notwithstanding by which vehicle, once judicial notice is taken.

Majority of cases in which aspirants/candidates had conflicting names prior to the decision of the Supreme Court in the case of PDP & ORS v. DEGI-EREMIENYO & ORS (2020) LPELR-49734(SC) had gone without notice and or unchallenged and even where they were challenged, they scaled through by the production of an affidavit and newspaper publication reflecting the regularization and correction and which were hitherto accepted by the Courts. With the changed position of the law now, there seems to be a herculean responsibilities placed on all aspirants/ candidates who may be caught in the web bearing several names that are variously and chameleonically used to suit the changing environment as may be contained in the information given by such candidate(s) in the affidavit i.e. (Form CF001) as well as the accompanied documents; mostly educational qualifications (certificates).

The Department of Publication, Nigerian Civil Registry may indeed have a busy schedule with the decision of the Supreme Court of Nigeria under consideration. The vast majority of Nigerians are likely to troop en masse to have their changed names gazetted or have their Deed Poll gazetted. This does not accommodate laxity on the part of aspirants/candidates for the forthcoming 2023 general election to wait at the last minute to kick start the process of effecting their change of name(s) through the execution of a Deed Poll and then having same gazetted. Delay is suicidal and can cost a candidate his political fortunes as was the case under consideration where the joint ticket of the 1st and 2nd Respondents sponsored by the 1st Respondent was vitiated by the disqualification of the 1st Respondent. Both candidates disqualified were deemed not to be candidates at the governorship election conducted in Bayelsa State and the Supreme Court of Nigeria ordered that INEC, (the 4th Respondent) declare as winner of the governorship election in Bayelsa State, the candidate with the highest number of lawful votes cast with the requisite constitutional (or geographical) spread. In no mincing words, the Supreme Court posited thus;

I also allow the appeal, set aside the judgment of the lower Court delivered on 23 December 2019 and do hereby reinstate the judgment of the trial Court delivered on 12 November 2019 including all the orders made therein. The sum total is that the joint ticket of the 1st and 2nd respondents sponsored by the 1st respondent was vitiated by the disqualification of the 1st respondent. Both candidates disqualified are deemed not to be candidates at the governorship election conducted in Bayelsa State. It is hereby ordered that INEC, (the 4th respondent herein) declare as winner of the governorship election in Bayelsa State, the candidate with the highest number of lawful votes cast with the requisite constitutional (or geographical) spread. The 4th respondent (INEC) is hereby further ordered to forthwith withdraw the certificate of return issued to the 1st and 2nd respondents and issue certificate of return to the candidate who had the highest number of lawful votes cast in the governorship election and who also had the requisite constitutional (or geographical) spread.

To avoid such unpleasant consequences, the following antidote is herein proffered;

  1. Political Parties should at the screening and nomination stages of their candidates eschew favoritism and identify those candidates having these peculiar problems of multifarious names and advise such candidates to kick start the process of regularization and correction timorously with a view to getting their Deed Poll gazetted before the submission of Form CF001.  The Courts will not countenance a Deed Poll that is not gazetted nor take judicial notice of payments made for gazetting of Deed Poll without evidence showing that same has been gazetted.
  2. Ensure that a duly gazetted Deed Poll and all other accompanying documents to wit (Affidavit and newspaper publications) are ready available and properly documented.
  3. Political parties and their candidates should always try to avoid the unwholesome practice of leaning on possible backdates triggered by delay on their part.
  4.  Political parties and candidates should always endeavour to properly scrutinize documents and or informations’ contained in Form CF001 before submission to the relevant electoral body.
  5. The capacity of the Department of Publication, Nigerian Civil Registry should be improved upon for the purposes of dealing with potential applications relating to the gazetting of a Deed Poll not only from Political office seekers but indeed the vast majority of Nigerians. 
  6. The need to consult and or contact a lawyer has become even more imperative in our ever changing world and more so a Deed Poll is a legal document.  

The writer is of the Department of Private and Business Law, Faculty of Law, Usmanu Danfodiyo University, Sokoto. He can be reached at extrapage2014@gmail.com


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