Within a period of less 10 years before the date of election to the Office of Governor of a State he has been convicted and sentenced for an offence involving dishonesty or he has been found guilty of the contravention of the Code of Conduct; or he is an undischarged bankrupt, having been adjudged or otherwise declared bankrupt under any law in force employed the word “shall” is not mandatory but discretionary as its effect is the same as the word “may” which is permissive. Publication of the name of a candidate cannot validate an otherwise invalid nomination and sponsorship of a candidate. In a situation where the 3rd respondent fails or neglects to publish the names of an otherwise validly nominated candidate of a political pa1iy for an election, the failure cannot be visited on the candidate to deprive him of the right conferred on him by the nomination to contest the election in question. Once a candidate has been nominated and his name sent by his political party to the third respondent as its candidate for the election, the candidate remains a candidate and cannot be changed or substituted, as long as he remains alive after the submission of his name, unless the candidate voluntarily withdraws from the race see Section 33 of the Electoral Act, 2010, as amended. Publication by third respondent, therefore, is truly an administrative act with no serious legal consequences on the nominated and sponsored candidate in case of failure to publish the name.
To my mind, what is crucial in this case is the issue of nomination and sponsorship as envisaged under Section 31 of the Electoral Act 2010, as amended, not publication of the names of candidates under Section 34 of the said Act. Once it has been established by Exhibits “Q” and “R” that 1st respondent was nominated and sponsored by second respondent for the election in issue and he contested same, the issue of his nomination and sponsorship has been established.
The next issue which also relates to Issue NO.1, already discussed is Issue No. 2 – whether the lower court rightly affirmed the decision of the Trial Tribunal which rejected Exhibits “D” and “L” tendered by the appellants counsel from the bar and admitted in evidence.
It is the submission of learned senior counsel for appellants that admissibly yof e-documents under the Evidence Act, 2010 is governed by the provisions of Section 84 thereof; that Exhibits “D” and “L” are e-documents as they are internet print out from undisputed websites of the authors; that it was wrong for the tribunal to have expunged the exhibits from the record and the lower court to affirm their reasons from doing so – that is that they were not certified true copies; that admissibility of a document at trial is determined by relevance, relying on Okoye vs Obiaso (2010) 8 NWLR (Pt. 1195) 145 at 163.
It is the further contention of learned senior counsel that Exhibits “D” and “L” do not fall into the usual public documents which require certification; that Exhibits “D” and “L” are admissible under Section 84 of the Evidence Act 2010; as the documents being computer generated do not need to be certified to make them admissible in evidence; that the lower court was in error when it affirmed the decision of the trial tribunal on the matter and urged the court to resolve the issue in favour of the appellants.
On his part, learned senior counsel for the first respondent stated that Exhibit “D” is an internet print out of the Punch Newspaper which makes it a secondary evidence of the original newspaper having regards to the provisions of Sections 85 and 87(a) of the Evidence Act, 2011; that by virtue of the provisions of Sections 90(1)(c)and 102(b) of the Evidence Act, 2011 only a certified true copy of the document is admissible; that by the provisions of Section 4(1) and 7(c) of the National Library Act, CAPN56 Laws of the Federation 2004, copies of every newspaper published in Nigeria has to be deposited with the National Library by the publisher, which makes such copies public documents by virtue of Section 102(b) of the Evidence Act 2011; that Exhibit “D” requires certification to make it admissible in evidence.
In the alterative, counsel submitted that for e-documents to be admitted under Section 84 of the Evidence Act 2011 subsection 4 thereof requires that there be a certificate identifying the document and describing the manner and the state of the devices through which they were produced; that since Exhibit “D” had no such certificate, it was inadmissible; that since Exhibit “D” was to establish the fact that 1 st appellant scored the highest number of valid votes if 1 st respondent were to be held disqualified with the abandoning of Ground 2 of the petition, the document, Exhibit “D”, became irrelevant in the proceedings and therefore inadmissible; that the court has powe1· to expunge from the record document/evidence that it comes to know is legally inadmissible, relying on N.I.P.C Ltd vs Thompson Organization Ltd (1966) 1 NMLR 99 at 1 04; Kankia vs Maigemu (2003) 6 NWLR (Pt. 817) 496.
The submission of learned senior counsel for the 2nd and 3rd respondents on this issues are very similar to that of senior counsel for 1 st respondent and as a result I do not intend to reproduce them herein as that would serve no useful purpose.
Granted, for the purpose of argument, that Exhibits ‘’D’’ and ‘’L’’ being computer generated documents or e-documents clown loaded from the internet are not public documents whose secondary evidence are admissible only by certified true copies then it means that their admissibility is governed by the provisions of Section 84 of the Evidence Act, 2011 Section 84(1) provides thus:
“ (i) in any proceedings, a statement contained in a document produced by a computer shall be admissible as evidence of any fact stated in it of which direct oral evidence would be admissible, if it is shown that the condition in sub-section (2)of this section are satisfied in relation to the statement and the computer in question.”
The conditions are:
(a) That the documents containing the statement was produced by the computer during a period over which the computer was used regularly to store or process the information for the purpose of any activities regularly carried on over that period, whether for profit or not, by anybody whether corporate or not or by any individual;
(b) That over that period there was regularly supplied to the computer in the ordinary course of those activities information of the kind contained in the statement or of the kind from which the information so contained is derived;
(c) That throughout the material parts of that period the computer was operating properly or if not that in any respect in which it was not operating properly or was out of operation during that point or that period was not such as to affect the production of the document or the accuracy of its contents; and
(d) That the information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary course of those activities.
There is no evidence on record to show that appellants in tendering Exhibits “D” and “L” satisfied any of the above conditions. In fact they did not as the documents were tendered and admitted from the bar. No witness testified before tendering the documents so there was no opportunity to lay the necessary foundations for their admission as e-documents under Section 84 of the Evidence Act 2011.
No wonder, therefore, that the lower court held, at page 838 of the record thus: “A party that seeks to tender in evidence a computer generated document needs to do more than just tendering same from the bar. Evidence in relation to the use of the computer must be called, established the conditions set out under Section 84(2) of the Evidence Act, 2011”.
I agree entirely with the above conclusion. Since appellants never fulfilled the pre-conditions laid down by law, Exhibits “D” and ‘’L’’ were inadmissible as computer generated evidence/documents. It is settled law that what determines the issue of admissibility of evidence is relevancy, what is the relevance of Exhibit ‘’D’’ in the proceedings? The lower court found/held and I agree with the court that it was intended to prove that 1st appellant scored the highest number of valid votes cast in the election in the event the 1st respondent is declared not qualified to contest the election; that with the withdrawal of Ground 2 of the petition to which Exhibit “D” is relevant, the document became irrelevant and consequently inadmissible in evidence The court made the findings/holdings at pages 839 – 840 of the record as follows:-
“However, Exhibit “D” is meant to show that appellants scored the highest number of votes cast at the election in the event the first respondent was held to have been disqualified, Ground 2 of the petition which supported this contention was abandoned by the appellants.
Having abandoned Ground 2, Exhibit “D” which was produced in support of the ground had ipso facto become irrelevant even though it was admitted. I therefore agree with learned counsel for the 1st and 2nd respondents who submitted that the tribunal was right in striking them out for being irrelevant.
However, looking closely at Exhibits “D’, and ‘’L’’ there are clearly public documents and it is settled law that the only admissible secondary evidence of public documents is a certified true copy of same. Exhibits ‘’D’’ and ‘’L’’ not being certified true copies of the Punch Newspaper and the list of candidates which third respondent is mandated to keep in the course of the performance of its official duties, are clearly inadmissible in evidence and the lower courts are right in so holding. The fact that the exhibits are computer print outs or e-documents does not change their nature and character as public documents.
On the sub issue as to whether the court has the power to expunge from its record evidence or documents earlier admitted without objection by counsel it is settled law that the courts can do that and has been doing that over the years—see NIPC Ltd vs Thomson Organisation Ltd (1966) 1 NMLR 99 at 104 where LEWIS, JSC stated the law as follows:
“lt is, of course, the duty of counsel to object to admissible and the duty of trial court any way to refuse to admit inadmissible evidence, but if notwithstanding this evidence is still through oversight or otherwise admitted then it is the duty of the court to when it comes to give judgment to treat the inadmissible evidence as if it had never been admitted’.
ln short, I resolve this issue against appellants.
ln conclusion, I see no reason, having regards to the resolution of Issues 1 and 2 which I consider crucial to the determination of the appeal against the appellants, to go into the remaining issues as the same have become irrelevant and of no moment; they have become hypothetical and are consequently discountenanced by me.
I therefore find no merit whatsoever in the appeal which is accordingly dismissed by me. I however order that parties bear their costs.
Appeal dismissed.
