A Senior Advocate of Nigeria (SAN) Jubrin Okutepa examines the Court of Appeal decision on the Presidential Election Petition brought before it by the Peoples Democratic Party (PDP) Presidential candidate, Atiku Abubakar.
On September 11, 2019, the Court of Appeal as Presidential Election Petition Tribunal delivered a unanimous judgement in which their lordships dismissed the petition of Alhaji Atiku Abubakar and that of his party PDP against INEC, President Muhammadu Buhari and APC for lacking in merit and for lack of proof as required by law.
In arriving at the unanimous decision the Court of Appeal considered many issues raised and arrived at conclusion which in my view was correct given the state of our law. Be that as it may, I think some of the issues raised and considered in the judgment need to be critically looked at and possibly a review of the stand taken be corrected if we are not to discourage parties who lost elections from taking their grievances to the tribunals which have been created to resolve electoral disputes.
For instance, I do not with respect agree with the position of their lordships on the point that public documents duly certified must per force be tendered by the makers before it can command evidential value. Why should the maker of public documents be called before it can command evidential value in our courts and in electoral justice.
How do you expect staff of INEC to accept coming to give evidence against INEC.
On this issue of calling the makers of public documents to tender them, it is my submission that certified copies of public documents can be tendered and acted upon in line with the decision of the court in Salami vs Ajadi (2007) LPELR – 8622 (CA), where it was decided that public documents can be tendered by the person to whom they were issued to.
This is so because section 83(1) of the Evidence Act 2011 that requires the maker of a document to be called is not an absolute provision.
It allows some exceptions in the proviso to subsections 1 and 2 thereof. One of the exceptions is on the ground of undue delay. Thus in Igbodim vs Obianike and Ors (1976) LPELR- 1448(SC) it was held that documentary evidence can be admitted in court through any witness by consent or without objection under section 83(2) of the Evidence Act.
Furthermore, section 98(1)(b) of the Evidence Act has made it unnecessary to call the maker of certified true copies of public documents. This is what the section says: “A person seeking to prove the due execution of a document is not bound to call the party who executed the document or to prove the handwriting of such party or of an attesting witness in any case where the person against whom the document is sought to be proved –
(b) is a public officer bound by law to procure its due execution and he has dealt with it as a document duly executed”.
See also sections 146 and 148 of the same Evidence Act which states that the courts shall presume every certified true copies of public documents produced before it to be genuine.
Section 52 of the Evidence Act also makes entry in a public book or record admissible and section 20 of the Evidence Act makes statement made by a party in a document adverse to his case admissible.
A question then may be asked, who is the maker of a public document of considerable antiquities.
Or who is the maker of INEC voters Register or INEC electoral materials or forms. The maker’s name is not indicated. At best, they are made for INEC by some Unknown human beings and it was the same INEC that by law is obligated to give these documents upon applications within seven days. See section 77 of the Electoral Act 2010 as amended.
By section 151 of the Electoral Act, the court or Tribunal can order INEC to give all Electoral materials to a party to prosecute, maintain or defend petition as the case may be. Again by section 31 subsection 5 of the Electoral Act 2010 as amended, any person who had reason to believe that information supplied to INEC by a candidate in an election is false can apply to INEC for the copy of form CF 001.
Normally public documents are usually given following the procedure permitted by the Evidence Act for public documents.
So if the laws allow certified public documents to be applied for and tendered even from the Bar why are our courts insisting that such documents must be tendered by the makers before it can command evidential value. There is no doubt that elections materials can be produced based on orders of court for inspection and for certified true copies to be made. See section 151 of the Electoral Act. In some cases INEC produced these documents and give based on the orders of courts or Tribunal. In some cases INEC may admit the existence of these documents.
In the case of case Asafa Foods Factory Ltd vs Alraine (Nig) Ltd and ors (2002) 12 NWLR (Pt. 781) 353, it was held that where a defendant admitted a document pleaded by the plaintiff, the document is regarded as proved but the plaintiff must still tender the document at the hearing so the court can interprete it correctly.
In that case the defendant cannot object to the admissibility of such document as it is already admitted.
It is my submission that a public document duly certified and all necessary processes followed for its certification can be tendered by the person to whom it was issued and or can be tendered from the Bar and any witness can be shown the documents to relate it to the aspect of the case for which the document was procured for. The decision that such documents must be tendered by the maker before it can command evidential value is contrary to the Evidence Act and the interest of justice.
Election petition requires that justice be done without undue technicalities. There is no doubt that electoral attrocities being perpetuated by political hooligans has held our democracy in the jugular and this should not be further encouraged by decisions that can derail our democracy.
In most cases INEC staff who participated in the conduct of elections are usually not seen. In some other cases, most of them will not want to appear to give evidence against their employers.
Why then do we demand that makers of INEC documents be called before weight can be attached to the documents.
On the issue of dumping which is acquiring unacceptable notoriety of injustice, I submit that except documents written in language other than the official language of the court, the court should be able to read the documents as long as the parties relate them to the aspects of their case to which the documents relate.
There is no need to start leading oral evidence thereto.
In the case of Dr Agagu vs RAHMAN Mimiko and Ors (2009) 7 NWLR (Pt. 1140) 34 at 424 E-H to 425 A, Abdullahi P.C.A (as he then was) had this to say on dumping in election matters:
“The contention of the learned senior Counsel for the appellant that no modicum of oral evidence in chief was produced on the documents is erroneous. The provisions of the Election tribunal and court Practice Directions dispensed of oral evidence-in-chief. The witnesses are to enshrine their evidence-in-chief in depositions which will be adopted at the trial by the deponents who will then be cross-examined and be re-examined. See Paragraph 4(1) and (3) of the Practice Directions which provides as follows:
“4(1) Subject to any statutory provisions or any provisions of these paragraphs relating to evidence any fact required to be proved at the hearing of a petition shall be proved by written deposition and oral examination of witnesses…
(3) There shall be no oral examination of a witness during his Examination-in-Chief except to lead the witness to adopt his written deposition and tender in evidence all disputed documents or other exhibits referred to in the deposition.”
Also in case of Terab vs Lawan (1992) 2 NWLR(Pt.231) 569, it was stated as follows:-”But one has to bear in mind the nature of Forms EC8A and EC8B as exposed in Decree No. 50 of 1991. The two forms are to show the polling station, the code number, the ward and the Local Government Area they relate to. They are statutory forms and when tendered give full and conclusive information needed for a polling unit. A petitioner who tendered them in proceedings has by so tendering them given all the relevant evidence which is discoverable from the forms.
Is it reasonable for a tribunal to expect that when a Form EC8A or EC8B is tendered, the party tendering either will have to read the contents of each form to the court as further evidence? I think not. The forms themselves carry bold information to the polling units to which they relate.
They can, therefore, be easily linked with particular areas and facts pleaded. It is a misapplication of the principle in Duriminya v. C.O.P. (Supra) to expect the petitioner to come and read a fresh to the court the same evidence already contained in the exhibits which were tendered and received without objection. The tribunal erred seriously by failing to see that forms EC8A and EC8B are statutory forms complete on their own as to their source and purport and which cannot therefore be equated with ordinary documentary exhibits.”
It is my submission that where Petitioners in election petition cases tendered in evidence the certified true copies of the voters register as well as the various forms used by INEC in conduct of election it will be a grave disservice to justice and putting roadblocks to justice to require such Petitioners to call makers of the forms and then be giving oral explanations of the documents before the court can give justice.
