FIDELITY BANK PLC V JAMES OLANREWAJU & ORSSeptember 3, 2019
Where Are The Fish? – Cast Your Net On The Right Side or Get Out Of BusinessOctober 10, 2019
LER  CA/PEPC/002/2019
AREAS OF LAW:
ACTION, APPEAL, CONSTITUTIONAL LAW, COURT, ELECTION, ELECTION PETITION, INTERPRETATION OF STATUTE, JURISDICTION, LAW OF EVIDENCE, LEGISLATION, PARTIES, PRACTICE AND PROCEDURE, STATUTE, TRIBUNAL, WORDS AND PHRASES
SUMMARY OF FACTS
The 1st Respondent, Independent Electoral Commission (INEC) conducted the Presidential Election on the 23rd day of February, 2019 wherein, the 2nd Respondent, sponsored by the 3rd Respondent, All Progressive Congress (APC) was declared and returned as the winner of the election. Aggrieved by the outcome of the election, the Petitioners filed a petition before the court praying that it may determine that the 2nd Respondent was not duly elected by majority of lawful votes cast in the said election and therefore the declaration and return of the 2nd Respondent by the 1st Respondent as the President of Nigeria is unlawful, undue, null, void and of no effect, that it may be determine that the 1st Petitioner was duly and validly elected and ought to be returned as the President of Nigeria, having polled the highest number of lawful votes cast at the election, that it may be determined that the 2nd Respondent was at the time of the election not qualified to contest the said election amongst others. The Petitioner alternatively sought that the election to the office of the President of Nigeria be nullified and a fresh election ordered on the grounds that the 2nd Respondent was not duly elected by majority of lawful votes cast at the election, that the election of the 2nd Respondent is invalid by reason of corrupt practices and non-compliance with the provisions of the Electoral Act, 2010(as amended), that the 2nd Respondent was at the time of the election not qualified to contest the said election , and; that the 2nd Respondent submitted to the 1st Respondent an affidavit containing false information of a fundamental nature in aid of his qualification for the said election. Upon service of the petition on the Respondents, each raised preliminary objections bordering on the competence of the Petition and the jurisdiction of this Court. Learned Counsel to the 1st Respondent contended that the grounds of the petition to which the issues relate constitute pre-election matters which are actionable within 14 days of the occurrence of the event as stipulated in Section 285(9) of the Constitution of the Federal Republic of Nigeria (as amended), and that the Petitioners did not commence the action within the time provided by the said Constitution and as such this Court lacks jurisdiction to adjudicate upon the said grounds.
ISSUES FOR DETERMINATION
Whether the 2nd respondent was at the time of the election not qualified to contest the election.
Whether the 2nd respondent submitted to the 1st respondent affidavit containing false information of a fundamental nature in aid of his qualification for the said election.
Whether from the pleadings and evidence led it was established that the 2nd respondent was duly elected by majority of lawful votes cast at the election.
Whether the presidential election conducted by the 1st respondent on 23rd february, 2019 was invalid by reason of corrupt practices.
Whether the presidential election conducted by the 1st respondent on 23rd february, 2019 was invalid by reason of non-compliance with the electoral act, 2010 (as amended) and the electoral guidelines 2019 and manuals issued for the conduct of elections.
ADMISSIBILITY OF DOCUMENTS – CRITERIA GOVERN THE ADMISSIBILITY OF DOCUMENTS
“The criteria governing admissibility of documents in evidence are well settled. In the case of Okonji & Ors V. George Njokanma & Ors (1999) LPELR – 2477 (SC) P 13, Okay Achike JSC had this to say:
“The position of the law in relation to the question of admissibility of a document in evidence is that admissibility is one thing while probative value that may be placed thereon is another.”
“Generally, three main criteria govern the admissibility of a document namely:
1. Is the document pleaded?
2. Is it relevant to the inquiry being tried by the courts and
3. Is it admissible in law?”
Where there are enough relevant facts in the pleadings of the parties to an action, the fact that a document is not specifically pleaded will not militate against its admission in evidence. Once it can be accommodated on facts already contained in the pleadings of the parties. See Monier Construction Company Ltd Vs. Tobias I Azubuike (1990) LPELR – 1910 (SC) Per Agbaje Jsc”. PER M.L.GARBA,J.C.A
DECLARATORY RELIEFS- WHETHER DECLARATORY RELIEFS ARE GRANTED ON THE ADMISSION OF THE DEFENDANT
“The settled position of the law is that the party making such allegations must lead or proffer credible evidence in order to sustain the allegations as a prelude to the grant of the relief sought thereupon.
The Petitioners have the task and obligation to prove the allegations beyond reasonable doubt. They must rely on the strength of their own case and not on the weakness or failure to call evidence by the Respondents. See:-
1. Section 135(1) of the Evidence Act 2011, which provides:-
“135(1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt.”
2. Edward Nkulegu Okereke Vs Nweze David Omahi & Ors (2016) 11 NWLR (Part 1524) 438 at 489 B – G per KEKERE-EKUN, JSC who said.-
“It: has been settled by a long list of authorities of this court that:
(1) Where a party seeks declaratory reliefs, the burden is on him to establish his claim. He must succeed on the strength of his own case and not on the weakness of the “defence (if any). Such reliefs will not be granted even on the admission of the defendant. See: Emenike v P.D.P. (2012) LPELR – SC 443/2011 p. 27, O-G, (2012) 12 WLR (Pt. 1315) 556: Dume: Ltd. v. Nwakhoba (2008) 18 NWLR (Pt. 119) 361 at 373- 374: Omisore v Aregbesola (2015) 15 NWLR (Pt. 1482) 205, 297 – 298 F – A, Ucha v. Elechi (2012) 13 NWLR (Pt. 1317) 330.”
3. Dr Sampson Uchechukwu Ogah Vs Dr Okezie Ikpeazu (2017) 17 NWLR (PART 1594) 299 AT 336 G -H – 337 A per M. D. Muhammed, JSC who held:-“I agree with learned senior counsel to both respondents that the appellant having asserted that 1st respondent’s tax declaration in Form CF001 is false has the burden of proving what he asserts. Addedly, the reliefs the appellant seeks being declaratory, he succeeds on the strength of his case alone and not on the weakness of the case of the respondents. The appellant has the burden of proof to establish the declaratory reliefs to the satisfaction of the Court. Being declaratory, the reliefs are not granted even on the admission of the respondents. See Dume: (Nig.) Ltd. v. Nwakhoba (2008) 18 NWLR (Pt. 1119) 361 and Senator lyiola Omisore & Anor v. Ogbeni Rauf Adesoji Aregbesola & Ors (2015) LPELR; (2015) 15 NWLR (Pt. 1482)205.
To succeed in his claim, therefore, the appellant must, in the final analysis establish that the 1st respondent never paid the tax he declared in Form CF001, exhibit D, to have paid as evidenced by exhibits A, B and C the tax receipts and tax clearance certificate respectively.” PER M.L.GARBA,J.C.A
PRESENTATION OF FORGED CERTIFICATES – PROOF OF ALLEGATION ON THE PRESENTATION OF FORGED CERTIFICATE TO THE INDEPENDENT NATIONAL ELECTORAL COMMISSION
“Similarly, whoever asserts that the candidate in an election had “presented forged certificate to the Independent National Electoral Commission” has the onus of proving beyond reasonable doubt that the candidate had in fact presented a forged certificate. In any proceeding H where commission of crime by a party is directly in issue the proof beyond reasonable doubt is the standard of proof. See Nwobodo v. Onoh (1984) 1 SCNLR 1; Tort v. Ukpabi (1984) 1 NSCC 141 at 145, (1984) 1 SCNLR 214.” 4. Abubakar Sadiq Mohammed V Hon. A. M. Wammako & Ors (2018) 7 NWLR (Part 1619) 573 at 585 H to 586 A – C where NWEZE, JSC held:-
“My Lords, it is evident that the lower courts, rightly, concluded that the appellant failed to prove his case. In the main, his contention was that the respondents were deemed to have admitted his averments having not debunked them in a counter-affidavit. With respect, I, entirely, endorse the submission of the learned senior counsel for the first and second respondents that, since the appellant sought for declaratory reliefs, he had an obligation to advance evidence in proof thereof.
– PER M.L.GARBA,J.C.A
DECLARATORY RELIEFS – BASIS FOR THE SUCCESS OF A CLAIM FOR DECLARATORY RELIEFS
“The reason is not far-fetched. Courts have the discretion either to grant or refuse declaratory reliefs. Indeed, their success, largely, depends on the strength of the plaintiff’s case. It does not depend on the defendant’s defence, Maja v. Samouris (2002) 7 NWLR (Pt. 765) 78; CPC v. INEC (2012) 1 NWLR (Pt. 1280) 106, 131. This must be so for the burden on the plaintiff in establishing declaratory reliefs is, often, quite heavy, Bello v. Eweka (1981) 1 SC 101; Okedare v. Adebara (1994) 6 NWLR (Pt. 349) 157; Dumez Nig Ltd v. Nwakhoba (2008) 18 NWLR (Pt. 1119) 361, 374”. PER M.L.GARBA,J.C.A
PRINCIPLE OF INTERPRETATION OF STATUTE – RULE GOVERNING THE INTERPRETATION OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999, (AS AMENDED) AND THE ELECTORAL ACT 2010 (AS AMENDED) ON THE NON-QUALIFICATION OR DISQUALIFICATION OF A CANDIDATE TO CONTEST AN ELECTION
Attention will now be paid to the relevant provisions of the Constitution of the Federal Republic of Nigeria, 1999, as amended and the Electoral Act 2010 as amended on non-qualification or disqualification of the 2nd Respondent to contest the February, 23, 2019 Presidential Election. The reason being that it is the said Constitution and the Electoral Act that govern the matters or issues relating to qualification and grounds for presentation on Election on the ground that a candidate has no requisite qualifications to contest a particular election.
The Court will also be guided by the principle of interpretation relating to provisions of the said Constitution and the Electoral Act. See: Action Congress (Ac) Vs INEC (2007) 12 NWLR (PART 1048) 222 at 259 B – D per KATSINA-ALU, JSC later CJN (Rtd.) of blessed memory who said:-
“It is necessary to bear in mind that the Electoral Act, 2006 is a subsidiary legislation which operates side by side with the 1999 Constitution. Both the Constitution and the Electoral Act shall be read together in order to give effect and meaning to the rights and obligation of individuals. It is a settled principle of interpretation that a provision of the Constitution or a statute should not be interpreted in isolation but rather in the context of the Constitution or statute as a whole. Therefore, in construing the provisions of a section of a statute, the whole of the statute must be read in order to determine the meaning and effect of the words being interpreted: See Buhari & Anor: v. Obasanjo & Ors. (2005) 13 NWLR (Pt. 941) 1 (219). But where the words of a statute are plain and unambiguous, no interpretation is required, the words must be given their natural and ordinary meaning.”
– PER M.L.GARBA,J.C.A
CANDIDATE IN AN ELECTION- WHETHER AN ELECTION TRIBUNAL HAS JURISDICTION TO DETERMINE THE ISSUE OF A PARTY’S DISQUALIFICATION OR NON-QUALIFICATION ARISING FROM THE DOMESTIC NOMINATION EXERCISE OF HIS POLITICAL PARTY
“Section 66(1) of the Constitution makes specific provisions for a person’s disqualification or non-qualification for election to the senate or the House of Representatives. These include the persons voluntary acquisition of the citizenship of a country other than Nigeria, his having been adjudged a lunatic or an undischarged bankrupt his having been sentenced to death or to imprisonment for an offence involving dishonesty, that he is a member of a secret society, his having been indicated for embezzlement or fraud, his presentation of a forged certificate to the Independent National Electoral Commission. Any of these disabilities spelt out in section 66(1) of the Constitution can properly constitute a ground upon which a person’s election can be questioned in an election petition. A person’s disqualification or non-qualification based on or arising from the domestic nomination exercise of his political party is clearly a pre-election matter over which the election tribunal has no jurisdiction”. PER M.L.GARBA,J.C.A
PRE-ELECTION MATTER – COURT WITH APPROPRIATE JURISDICTION TO DETERMINE THE NOMINATION AND/OR SUBSTITUTION OF A CANDIDATE IN AN ELECTION
“The nomination and/or substitution exercise of the 4th respondent upon which the petition was predicated was clearly a pre-election matter over which only the Federal High Court or the High Court of a State has jurisdiction.” 2. PDP V INEC (2014) 17 NWLR (PART 1437) 525 AT 559 – 560 per OKORO, JSC who said:-
“As I mentioned earlier, 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(l)(a) of the Electoral Act. That is to say, where a person faded to take advantage of section 31(5) and (6) (supra) in the High Court, he can still approach the Election Tribunal under section 138(l)(a) thereof.
– PER M.L.GARBA,J.C.A
ELECTION TO THE OFFICE OF GOVERNOR OF A STATE – CONDITIONS FOR THE QUALIFICATION FOR ELECTION TO THE OFFICE OF THE GOVERNOR OF A STATE
“Section 177 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) sets out conditions a person must meet to be qualified to be governor of a State. It states:
“177. A person shall be qualified for election to the office of Governor of a State if:
(a) He is a citizen of Nigeria by birth;
(b) He has attained the age of thirty-five years;
(c) He is a member c of a political party and is sponsored by that political party; and
(d) He has been educated up to at least school certificate level or its equivalent.”
Again, section 182 of the said Constitution provides for disqualification of candidates seeking the office of Governor. It is my view that where it is alleged that a person is or was not qualified to contest election to the office of Governor as envisaged by section 138(a) (1) of the Electoral Act, it is sections 177 and 182 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) that are being contemplated.” PER M.L.GARBA,J.C.A
ELECTION TO THE OFFICE OF PRESIDENT – CONDITIONS FOR THE QUALIFICATION FOR ELECTION TO THE OFFICE OF PRESIDENT
Sections 131 and 137 of the Constitution of Federal Republic of Nigeria 1999 as amended are as follows:-
“131. A person shall be qualified for election to the office of President if
(a) he is a citizen of Nigeria by birth:
(b) he has attained the age of forty years ;
(c) he is a member of a political party and is sponsored by that political party; and
(d) he has been educated up to at least the School Certificate level or its equivalent.”
137 (1) A person shall not be qualified for election to the office of President if-
(a) subject to the provisions of section 28 of this Constitution, he has voluntarily acquired the citizenship of a country other than Nigeria or except in such cases as may be prescribed by the National Assembly, he has made a declaration of allegiance to such other country; or
(b) he has been elected to such office at any two previous elections; or
(c) under the law in any part of Nigeria, he is adjudged to be a lunatic or otherwise declared to be of unsound mind; or
(d) he is under a sentence of death imposed by any competent court of law or tribunal in Nigeria or a sentence of imprisonment or fine for any offence involving dishonesty or fraud (by whatever name called) or for any other offence, imposed on him by any court or tribunal or substituted by a competent authority for any other sentence imposed on him by such a court or tribunal; or
(e) within a period of less than ten years before the date of the election to the office of President 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
(f) he is an undischarged bankrupt, having been adjudged or otherwise declared bankrupt under any law in force in Nigeria or any other country; or
(g) being a person employed in the civil or public service of the Federation or of any Stale, he has not resigned, withdrawn or retired from the employment at least thirty days before the date of the election; or
(h) he is a member of any secret society; or
(j) he has presented a forged certificate to the Independent National Electoral Commission,
(2) Where in respect of any person who has been-
(a) adjudged to be a lunatic;
(b) declared to be of unsound mind;
(c) sentenced to death or imprisonment; or
(d) adjudged or declared bankrupt, any appeal against the decision is pending in any court of law in accordance with any law in force in Nigeria, subsection (1) of this section shall not apply during a period beginning from the date when such appeal is lodged and ending, on the date when the appeal is finally determined or, as the case may be, the appeal lapses or is abandoned, whichever is earlier.
(3) A person who was sworn-in as President to complete the term for which another person was elected as
President shall not be elected to such office for more than a single term.” PER M.L.GARBA,J.C.A
“SCHOOL CERTIFICATE OR ITS EQUIVALENT” – DEFINITION OF “SCHOOL CERTIFICATE OR ITS EQUIVALENT”
“Section 318(1) of the said Constitution defines “School Certificate or its equivalent” to mean:-
“School Certificate or its equivalent” means-fa) a Secondary School Certificate or its equivalent, or Grade II Teacher’s Certificate, the City and Guilds Certificate; or
(b) education up to Secondary School Certificate level; or
(c) primary Six School Leaving Certificate or its equivalent and-
(i) service in the public or private sector in the Federation in any capacity acceptable to the Independent National Electoral Commission for a minimum of ten years, and
(ii) attendance at courses and training in such institutions as may be acceptable to the Independent
National Electoral Commission for periods totaling up to a minimum of one year, and
(iii) the ability to read, write, understand and communicate in the English language to the satisfaction of the Independent National Electoral Commission; and
(d) any other qualification acceptable by the Independent National Electoral Commission.”
– PER M.L.GARBA,J.C.A
EVIDENCE OF EDUCATIONAL QUALIFICATION – WHETHER IT IS MANDATORY FOR A PRESIDENTIAL CANDIDATE TO ATTACH EVIDENCE OF HIS EDUCATIONAL QUALIFICATION TO FORM CF001
‘The Petitioners have relied on Section 76 and 31(4) of the Electoral Act 2010 as amended that it is compulsory for 2nd Respondent to attach evidence of qualification to FORM CFOO 1.
Section 31(4) of the Electoral Act provides:-
“31(4) Any 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 document within 14 days”.
The above section of the Electoral Act 2010 does not say any such thing. In any event Section 31 (4) of the Electoral Act must be read together with Section 31(2) of the Electoral Act which provides:-
“31(2) The list or information submitted by each candidate shall be accompanied by an Affidavit sworn to by the candidate at the Federal High Court of a State or Federal Capital Territory indicating that he has fulfilled all the constitutional requirements for election to that office.”
The reasonable inference or plausible meaning attachable to the above provision of Electoral Act 2010 as amended is that a Candidate can list information concerning evidence of his qualifications or other relevant information(s) about himself. The demand or information required in FORM CFOO 1 cannot be more or higher than the statutory requirements”. PER M.L.GARBA,J.C.A
INTERPRETATION OF STATUTE – PRINCIPLES GUIDING THE INTERPRETATION OF STATUTES
Section 76 of the Electoral Act 2010 as amended provides:-
“76. The forms to be uses for the conduct of elections under this Act shall be determined by the Commission.”
Where the provisions of a statute is straight forward and unambiguous the Court cannot read into the statute what is does not contain, A statute must be solemnly interpreted in a manner that will project and bring out succinctly the real intention of the law makers. No extraneous matter should be allowed to stray into the principles of interpretation of an Act or Constitution. See:-
1. Cocacola Nigeria Ltd & Ors Vs Mrs. Titilayo Akinsanya (2017) 17 NWLR (PART 1593) 74 AT 121 E – G per EJEMBI EKO, JSC who said:-
“The courts for a long while now have come to settle on the principle that, if the words of the statute are clear and unambiguous they must be followed even if they lead to manifest absurdity. See Queen v. Judge of The City Of London (1892) 1 QB 273 at 290. It was stated further in this decision, in the manner of positivism, that the court has nothing to do with question whether the legislature has committed absurdity. It is only when the words of the statute are capable of two interpretations; one leads to absurdity, and the other does not, that the court will conclude that the legislature does not intend the absurdity and will adopt the other interpretation that does not lead to any absurdity. The judex neither makes laws nor does it possess any power to amend any statute.”
2. Ocholi Onojo James, SAN V INEC & Ors (2015) 12 NWLR (PART 1474) 538 AT 588 D – G also per KEKERE-EKUN, JSC who had this to say:-
“In interpreting the provisions of the Constitution and indeed any statute, one of the important considerations is the intention of the lawmaker. In addition to giving the words used, their natural and ordinary meaning (unless such construction would lead to absurdity), it is also settled that it is not the duty of the court to construe any of the provisions of the Constitution in such a way as to defeat the obvious ends it was designed to serve where another construction equally in accord and consistent with the words and sense of such provisions will serveto enforce and protect such ends. See: Mohammed v. Olawunmi (1990) 2 NWLR (Pt.133) 458; Rabiu v. The State (1981) 2 NCLR 293; Adetayo v. Ademola (2010) 15 NWLR (supra) @ 190-191 G-A; 205 D-F.”
– PER M.L.GARBA,J.C.A
PROVISIONS OF A STATUTE – PRINCIPLE GOVERNING THE INTERPRETATION OF THE PROVISIONS OF A STATUTE
“It is also in tandem with the principle of interpretation that provisions of a statute must be read as a whole to determine the object of the law. See Ozonma (Barr) Chidi Noblis Elendu vs INEC & Ors (2015) 6 SCM 117 At 137 per M. D. Muhammed, JSC who said:-
“The interpretative task of the foregoing desired a communal consideration from the lower court. Whenever a court is faced with the interpretation of statutory provisions, the statute must be read as a whole in determining the object of a particular provision. Thus, all provisions of the statute must be read and construed together unless there is a very clear reason why a particular provision of the statute should be read independently. To achieve a harmonious result, a section must be read against the background of another to which it relates. This principle is indispensable, in giving effect to the true intentions of the makers of the statute. See Rabiu v. Kano State (1980) 8 -11 SC 130 and Attorney-General Lagos State v. Attorney-General Federation (2014) All FWLR (Pt. 740) 1296 at 1331.”
– PER M.L.GARBA,J.C.A
PRESENTATION OF CERTIFICATE – WHETHER THE PRESENTATION OF EDUCATIONAL CERTIFICATE IS A REQUIREMENT OF SECTION 177(D)OF THE CONSTITUTION ON THE QUALIFICATION TO CONTEST ELECTION
More importantly the law is firmly settled that a-candidate is not required by the Constitution or the Electoral Act to attach his certificates to FORM CF001 before the candidate can be considered or adjudged to have the requisite educational qualifications to contest election. See the cases of:-
1. Terver Kakih Vs Pdp & Ors (2014) 15 NWLR (PART 1430) 374 AT 424 B – H TO 425 A – E per Galadima, JSC who said:-
“The contention of the appellant is that 4th respondent was not qualified to contest because of non-presentation of his certificate. However, the courts below recognized the fact that the issue; of non-qualification of 4th respondent by virtue of non-presentation of certificate was never the case of appellant from the beginning earlier observed. The appellant has contended that having regards to section 182(7)(j) of the 1999 Constitution the 4th respondent is necessarily required to present his certificate to the 1st and 2nd respondents in order to prove his qualification to contest the election otherwise he is disqualified under S. 177 (d) of the Constitution and that by S. 167(d) of the Evidence Act 2011, the failure is fatal, because if produced it would have been unfavourable to him.
This contention is misconceived. Submission or presentation of certificate is not the requirement of S. 177(d) of the Constitution as regards the Gubernational screening process. The process of screening- which the appellant and 4th respondent undertook with the 1st respondent requires the candidate to fill in his qualification in the form and to swear to a verifying affidavit that the information contained in Form CF001 was true. This takes away the necessity of presentation of the actual certificate to the 1st and 2nd respondents. PER M.L.GARBA,J.C.A
ELECTION TO THE OFFICE OF GOVERNOR OF A STATE – IMPORT OF THE PROVISIONS OF SECTIONS 177(D), AND 318 (B) OF THE CONSTITUTION ON THE QUALIFICATION FOR ELECTION TO THE OFFICE OF GOVERNOR OF A STATE
“By the provision of S. 177 (d) of the Constitution a person shall be qualified for election to the office of Governor of a State if:
(d) He has been educated up to at least school certificate level or its equivalent. By section 318 (1) “School certificate or its equivalent means.”
(b) Educated up to secondary school certificate level.
In Bayo v. Njidda (2004) 8 NWLR (Pt. 876) 544 at 630;(2004) FWLR (Pt.192) 10 at 78, the Court of Appeal then the apex and final court on Election Petition Assembly/Governorship and Legislative Houses Election Tribunal had this to say on the point:
“In other words, as regards a secondary school certificate examination’; it is enough, in my view that one attended School certificate level i.e. without passing and obtaining the certificate.”
By the combined reading of Ss. 177(d), and 318 (b) of the Constitution is not the only requirement or basis of qualification, but whether the candidate has been educated up to Secondary School certificate Level. I am on one and in agreement with the learned counsel for the respondents that it is not only by presentation of certificate to the respondent that is the only proof that 4th respondent is qualified as the appellant here in who has taken this position did not by his own showing under cross-examination) present or submit one. PER M.L.GARBA,J.C.A
SENTIMENTS –WHETHER SENTIMENTS ARE RELEVANT IN JUDICIAL DELIBRATIONS
By dint of these foregoing sections of the Evidence Act learned counsel would do well for the litigants who will be happier for it if they shun sentiments as these command no place in judicial deliberations: See Ogbiti v. N.A.O.C. Ltd. (2010) 14 NWLR (Pt.1213) p.208. A litigant must be able to establish his case on the evidence he presented before the court or on known or settled principles of law”. PER M.L.GARBA,J.C.A
CONCURRENT FINDING OF FACTS BY THE LOWER COURT – ATTITUDE OF THE COURT ON THE FAILURE BY A PARTY TO ESTABLISH THAT THE CONCURRENT FINDING OF FACTS BY THE LOWER COURT IS PERVERSE
“In sum the appellant having failed to show that the concurrent finding of facts by the lower Court is perverse thereby occasioning miscarriage of justice. I cannot disturb same and the conclusion that the appellant claim is frivolous, brought malafide, vexatious…” PER M.L.GARBA,J.C.A
TENDERING OF DOCUMENT – CONSEQUENCES OF TENDERING A DOCUMENT FROM THE BAR WITHOUT CALLING THE MAKER
“The consistent holding of the apex Court is that such documents (Exh. P80 and P24) must be tendered through their makers or where tendered from the bar the maker or a witness with the knowledge of Exhibits P80 and P24 must be called to give evidence on them. Moreso the Petitioners made allegations of crime the cornerstone of issues 1 and 2. See:-
1. Ikpeazu V. Otti (2016) 8 NWLR (PT. 1513) 38 AT 93 B per GALADIMA, JSC who said:-
“It is settled law that a party who did not make a document is not competent to give any evidence on it. This is the situation here PW19 did not make Exhibit PWC2 she cannot competently tender it. The maker must be called to testify to credibility and veracity.”
2. Ezenwo Nyesom Vs Hon. (Dr) Dakuku Adol Peterside & Ors (2016) 7 NWLR (PART 1512) 452 AT 522 where KEKERE-EKUN, JSC, said:-
“In Belgore v. Ahmed (supra) this court emphasised the fact that where the maker of a document is not called to testify, the document would not be accorded probative value, notwithstanding its status as a certified public document. Furthermore, in Buhari v. INEC (supra) at 391, it was held that in estimating the value to be attached to a statement rendered admissible by the Evidence Act, regard must be had, inter alia, to all the circumstances from which any inference can reasonably be drawn to the accuracy or otherwise of the statement.”
3. Udom Gabriel Emmanuel Vs Umana Okon Umana & Ors (2016) 12 NWLR (PART 1526) 270 AT 286 G-H TO A-B per NWEZE, JSC who said:-
“However, I wish to further emphasize on the rather reckless behavior of the court below in refusing to be guided by the decision of this court but relied on its own decision to decide that it was unnecessary to call the makers of documents exhibits 317 and 322 to testify in this case. The law is well settled that documents produced by parties in evidence in course of hearing are to be tested in open court before the court can evaluate them to determine their relevance in the determination of the case upon which the documents are relied upon. For this reason* any document tendered from the bar without calling the maker thereof attracts no probative value in the absence of opportunity given to the other party to cross-examine for the purpose of testing its veracity. See Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205 at 322-323 which the court below refused to apply in place of its own decision in Aregbesola v. Oyinlola (2011) 9 NWLR (Pt…
– PER M.L.GARBA,J.C.A
DOCUMENTARY EVIDENCE – STATUS OF A NEWSPAPER REPORT TENDERED IN EVIDENCE
“And recently the Supreme Court warned that newspaper report may not represent the truth of what it contained see Ayo Adegbite V The State (2018) 5 NWLR (PART 1612) 183 AT 205A per GALINJE, JSC who said:-
“The lower Court was also right when it refused to accord probative value to the newspaper report and radio interview as newspaper report is not always the truth of its contents, and the prosecution had no burden to tender the newspaper report in evidence.”
– PER M.L.GARBA,J.C.A
DOCUMENTARY EVIDENCE – PARTIES ARE BOUND BY THEIR PLEADINGS – STATUS OF A DOCUMENT DUMPED ON THE COURT- ESSENCE OF FRONT-LOADING STATEMENTS OF WITNESSES
“Parties are bound by their pleadings and any evidence of witness(es) or address of Learned Counsel to a party contrary to the pleaded case of the party goes to no issue and the Court seized of the matter will in the circumstance discountenance such evidence. A party will not be allowed under any guise to deviate from his pleadings. See:-
1. Hon. Chief Ogbuefi Ozomgbachi V Mr Dennis Amadi & Ors LPELR – 45152 (SC) 1 at 53 per PETER-ODILI, JSC who said:-
“It needs be reiterated that parties are bound by their pleadings and no party is allowed to make case different from what it set out from inception and so for the Appellant to seek to depart from their pleadings and embark on a fresh or brand new case different from the very beginning is an act in futility. The obvious reason is that a case retains its original nature from the commencement and the colour would not change because it is on appeal since an appeal or appeals are merely a continuum of that matter that entered from the very first time at the Court of first instance. It follows that the brilliant address of Counsel would not scratch the surface in the apparent quest or a change of nature of the case. See Effiom v C.R.S.I.E.C (2010) 14 NWLR (PT. 1213) 106; Alhasan v. Ishaku supra at 286 per Ogunbiyi, JSC; Ogunsanya v The State (2011) LPELR – 2349 SC 44 – 54 per RHODE5-VIVOUR, JSC.”
2. African Conntinental Seaways Ltd Vs NDRHW Ltd (1977) 5SC 235 at 249-250 per IRIKEFE JSC later CJN.
Exhibit P30 tendered from the Bar as Archival Document was only dumped on the Court without any evidence to breathe life into it. PW62 confessed under cross examination that facts contained in his witness statement on oath was gathered from information passed to him. In any event, he gave no evidence concerning the Exhibits because facts therein contained are not from his personal knowledge. In effect, Exhibit P30 are also of no probative value. The allegations that the schools were not in existence and there was no certificate known as WASC have not been proved and the petitioners thereby failed to discharge the onus placed on them. See Maku V Al-Makura (2016) 5 NWLR (PART 1505) 201 at 222 G-H to 223 A per M.D MUHAMMAD, JSC who said:
“Lastly, the essence of front-loading statements of witnesses is to facilitate speedy disposal of election petition and does not justify “dumping” of exhibits and urging the tribunal and the court to proceed in a manner that opens them to unnecessary and avoidable suspicion of bias. All facts that entitle the party to the H courts indulgence must be demonstrated in open court to ensure that in arriving at its decision on the matter the court is as detached and neutral as anyone could easily see. The examination of exhibits outside the court and behind the litigants certainly stands in the way of these necessary and laudable traits. See Obasi Brothers Ltd. v. MB.A. Securities Ltd. (supra) and Onihylo v. Akibu (1982) 7 SC 60 at 62 and Ucha v. Elechi (supra).” (2). Senator Rashidi Adewolu Ladoja Vs Senator Abiola Ajimobi & Ors (2016) 10 NWLR (PART 1519) 87 at 146F-H to 147 A-B per OGUNBIYI, JSC.
Exhibit P30 remains documentary hearsay. PER M.L.GARBA,J.C.A
“NAME” – DEFINITION OF A “NAME”
“After all, a name is defined at page 1048 of the 8th Edition of Black’s Law Dictionary to mean:
“a word or phrase identifying or designating a person or thing and distinguishing that person or others.”
– PER M.L.GARBA,J.C.A
ELECTION RESULT – PRESUMPTION OF CORRECTNESS OF ELECTION RESULT – ON WHOM LIES THE BURDEN OF REBUTTING THE CORRECTNESS OF ELECTION RESULT
Sections 147, 148, 167 and 168(1) of the Evidence Act 2011 presume the result of the Presidential election declared by the 1st Respondent on 27th day of February, 2019 as correct and authentic until proved otherwise.
The presumption is however rebuttable in an election Petition as the one under consideration. The burden is therefore on the Petitioners in this Petition to rebut the presumption.
The position is well enunciated in the cases of;-1. Chief Akin Omoboriowo Vs Chief Michael Ajasin (1984) 1 SC 206 AT 227 – 228 per BELLO, JSC (later CJN, Rtd.) of blessed memory who held:-
“Now, as I stated in Nwobodo v Onoh (supra), there is in law a rebuttable presumption that the result of any election declared by the returning officer is correct and authentic by virtue of sections 115, 148(c) and 149(1) of the Evidence Act and the burden is on the person who denies the correctness and authenticity of the return to rebut the presumption. Where such denial is based Again, polling booths are the base of the pyramid which forms the electoral process under the provisions of the Electoral Act, 1982. The booths are the roots which nourish the whole electoral process. Where a petitioner challenges the correctness of the return of an election declared by the returning officer then, except in respect of arithmetic errors in collation, the petitioner must lead evidence which will directly or indirectly establish the votes scored by him and his opponent at the polling booths.”
2. General Muhammadu Buhari V INEC & Ors (2008) 19 NWLR (PART 1120) 246 AT 354 C – D per NIKI TOBI, JSC also of blesses memory who had this to say:-
“Election results are presumed by law to be correct until the contrary is proved. It is however a rebuttable presumption, In other words, there is a rebuttable presumption that the result of any election declared by a returning officer is correct and authentic and the burden is on the person who denies the correctness and authenticity of the return to rebut the presumption, See Omoboriowo v. Ajasin (1984) 1 SCNLR 108, Jalingo v. Nyame (1992) 3 NWLR (Pt.231) 538; Finebone v. Brown (1999) 4 NWLR (Pt.600) 613; Hashidu v. Goje (2003) 15 NWLR (Pt.843) 352 and Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 1.”
– PER M.L.GARBA,J.C.A
ELECTION PETITION – DUTY OF A PETITIONER WHO CONTESTS THE ILLEGALITY OF VOTES CAST IN AN ELECTION
“In order to prove the above assertions the Petitioners are under legal obligation to call oral and documentary evidence through witnesses who are eye witnesses who can give cogent and direct evidence and demonstrate before the Court any misapplication of votes scored by the parties at the aforesaid election.
1. Alhaji Atiku Abubakar, GCON & Ors V. Alhaji Umaru Musa Yaradua & Ors (2008) 19 NWLR (PART 1120) 1 AT 173 E – G per NIKI TOBI, JSC (of blessed memory) who said:¬”Petitioner who contests the legality or lawfulness of votes cast in an election and subsequent result must tender in evidence all the necessary documents by way of forms and other documents used at the election. He should not stop there. He must call witnesses to testify that the illegality or unlawfulness substantially affected the result of the election. The documents are among those in which the results of the votes are recorded. The witnesses are those who saw it all on the day of election not those who picked the evidence from eye-witness. No. They must be eye witness too. Both forms and witnesses are vital for contesting the legality or lawfulness of votes and the subsequent result of the election. One cannot be substitute for the other. It is not enough for the Petitioner to tender only the documents. It is incumbent on him to lead evidence in respect of the wrong doings or irregularities both in the conduct of the election and recording of the votes; wrong doings and irregularities, which affected substantially the result of the election.”
2. Edward Nkulegu Okereke Vs Nweze David Omahi & Ors (2016) 11 NWLR (PART 1524) 438 AT 489 B – G per KEKERE-EKUN, JSC who said:-
“It has been settled by a long list of authorities of this court that:
Where a party seeks declaratory reliefs, the burden is on him to establish his claim. He must succeed on the strength of his own case and not on the weakness of the defence (if any), Such reliefs will not be granted even on the admission of the defendant. See: Emenike v. PD.P. (2012) LPELR – SC 443/2011 p. 27, D-G: (2012) 12 WLR (Pt. 1315) 556: Dume: Ltd. v. Nwakhoba (2008) 18 NWLR (Pt. 119) 361 at 373-374: Omisore v. AregbesoLa (2015) 15 NWLR (Pt. 1482) 205,297 – 298 F – A: Ucha v. ELechi (2012) 13 NWLR (Pt. 1317) 330.
– PER M.L.GARBA,J.C.A
DOCUMENTARY EVIDENCE – CONSEQUENCES OF DUMPING DOCUMENTARY EVIDENCE ON A COURT
“Documentary evidence relied upon by a party must be specifically linked to the aspect of his case to which it relates. A party cannot dump a bundle of documentary evidence on a court or Tribunal and expect the court to conduct an independent enquiry to provide the link in the recess of its chambers. This would no doubt amount to a breach of the principle of fair hearing. See: Ucha v. ELechi (supra): Iniama v. Akpabio (2008) 17 NWLR (Pt. Ill6) 225 at 299D- F: Aivuse v. Odili (2005) 16 WLR (Pt.952) 416: A.N.P.P. v. INEC (2010) 13 WLR (Pt. 1212) 549. Hearsay evidence, oral or documentary, is inadmissible and lacks probative value. See section 37 of the Evidence Act, 2011 particularly sub-section: (b) See: Buhari v. Obasanjo (2005) 13 NWLR (Pt.941) 1 at 317: Doma v. INEC (2012) All FWLR (PT 28) 813 at 829: (2012) 13 NWLR (Pt. 1317) 297. ” PER M.L.GARBA,J.C.A
INTERPRETATION OF STATUTES – CARDINAL PRINCIPLE OF INTERPRETATION OF STATUTES
“The law is settled that if the word of statute are clear and unambiguous they must be scrupulously followed and interpreted in such a manner that will best bring out the manifest intention of the law maker. The bottom-line is that it is the duty of the Court to ascertain the intention of the legislature and give effect to it. If there is any lacuna or imperfection in the law or statute it is not the function of the Court to amend the law. That is in the domain of the legislature. See:-
1. Hon. Henry Seriake Dickson Vs Chief Timipre Marlin Sylva & Ors (2017) 8 NWLR (PART 1567) 167 AT 233 D – F per KEKERE-EKUN, JSC who said:-
“The law is settled that in the interpretation of Statutes, where the words are clear and unambiguous, they must be given their natural and ordinary meaning. See: Ibrahim v. Borde (1996) 9 NWLR (Pt. 474) 513 @ 577 B-C; Ojokolobo v. Alamu (1987) 3 NWLR (Pt. 61) 377 @ 402 F-N. The exception is where to do so would lead to absurdity. See: Toriola v. Williams (1982) 7 SC 27 @ 46; Nnonye v. Anyichie (2005) 1 SCNJ 306 @ 316, (2005) 2 NWLR (Pt. 910) 623. Where an interpretation will result in breaching the object of the statute, the court would not lend its weight to such an interpretation. See: Amalgamated Trustees Ltd. v. Associated Discount House Ltd. (2007) 15 NWLR (Pt. 1056) 118.”
2. Rt. Hon. Rotimi Amaechi V INEC & Ors (2008) 5 NWLR (PART 1080) 227 AT 314 per OGUNTADE, JSC who said:-
“It is settled law that the Court in interpreting the provisions of a statute or Constitution must be read together related provisions of the Constitution in order to discover the meaning of the provisions. The Court ought not to interpret related provisions of a statute or Constitution in isolation and then destroy in the process the true meaning of a particular provision.”
And quite recently the Supreme Court of Nigeria reiterated the above principles in the case of Professor Jerry Gana, CON vs Social Democratic Party (SDP) & Ors (2019) 11 NWLR (PART 1684) 510 AT 533 B – C per EJEMBI-EKO, JSC who said:-
The cardinal principle of interpretation is that when the words of the statute or instrument are clear and unambiguous they must be given their ordinary natural simple meaning. A Court of law, it its interpretative jurisdiction, lacks jurisdiction to import or impute into a statutory provision words which are not therein used. Its duty being only to interpret the provisions in order to bring out the meaning of the words used in the statute and the intent of the lawmaker: Unipetrol vs E.S.B.I.R. (2006) ALL FWLR (PT. 317) 413 AT 423, (2006) 8.NWLR (PT. 983) 624, Obusez V Obusez (2007) 3 ONSCQR 329, (2007) lO NWLR (PT. 1043) 430.”
At page 541H his Lordship of the Supreme Court said:-“It is not one of the canons of interpretation for the Court to merely adopt the wishful thinking of a litigant in its interpretative jurisdiction. Lord Goddard, CJ in Barnes v Jarris (1953) 1 WLR 649 at 652, Had advocated that the Court, in construing a statute or document must apply certain amount of common sense. See also Nigeria-Arat Bank. Ltd v Comex (1999) 6 NWLR (Pt. 608) 648 at 669 per OGUNTADE, JCA as he then was”
– PER M.L.GARBA,J.C.A
SMART CARD READER MACHINE – POSITION OF THE LAW ON THE USE OF SMART CARD READER MACHINE
“The Supreme Court of Nigeria has settled the law on the position of the use of Smart Card Reader in an election and had interpreted Section 52(1 )(b) of the Electoral Act 2010 as amended which provides that the use of electronic voting machine for the time being is prohibited in numerous cases suffice to refer to some of them viz:-
l. Wike Ezenwo Nyesom V Hon. Dr. Dakuku Adol Peterside & Ors (2016) 7 NWLR (part 1512) 452 At Page 522 A – C per KEKERE-EKUN, JSC who said:-“It would not therefore be out of place to say that both lower courts placed considerable reliance on the testimony of PW49 and the Card Reader report (Exhibit A9) and exhibits A301, 830, 831 in reaching the conclusion that the 1st and 2nd respondents had successfully proved the alleged discrepancy between the number of voters accredited in exhibit A9 and those reflected in exhibit A 10 (Form EC8E series). This court in a number of recent decisions has commended the introduction of the Card Reader in the 2015 elections by INEC. The court has noted however, that its function is solely to authenticate the owner of a voter’s card and to prevent multi-voting by a voter and cannot replace the voters’ register or statement of results in appropriate forms. See: Shinkaji v. Yari (supra); Okereke v. Umahi (unreported) SC. 1004/2015 delivered on 5/2/2015 at pages 31- 34.”
At page 525A-H – 526A-F his Lordship of Supreme Court of Nigeria held:-
“I had stated earlier in this judgment that INEC is to be commended for the innovation of the Card Reader machine to bolster the transparency and accuracy of the accreditation process and to maintain the democratic norm of “one man one vote” by preventing multi-voting by a voter. Nevertheless, section 49(1) and (2) of the Electoral Act, 2010 (as amended) which provide for manual accreditation of voters is extant and remains a vital part of our Electoral Law. The section provides thus: “49(1) Any person intending to vote with his voter’s card, shall present himself to a Presiding Officer at the polling unit in the constituency in which his name is registered with his voter’s card.
(2) The Presiding Officer shall, on being satisfied that the name of the person is on the Register of Voters, issue him a ballot paper and indicate on the Register that the person has voted.” In the recent decision of this court in Shinkafi v. Yari (2016) 7 NWLR (Pt. 1511) 340 Okoro, JSC stated thus: “My understanding of the function of the Card Reader Machine is to authenticate the owner of a voter’s card and to prevent multi-voting by a voter. I am not aware that the Card Reader Machine has replaced the voter’s register or has taken the place of statement of results in appropriate forms.” Again, Nweze, JSC in Okereke v. Umahi & Ors. (Unreported) SC.1004/2015 delivered on 5/2/2016 reiterated the position thus at pages 33 -34:
“Indeed, since the Guidelines and Manual (supra), which authorised the use and deployment of the electronic Card Reader Machine, were made in exercise of the powers conferred by the Electoral Act, the said Card Reader cannot, logically, depose or dethrone the Voters’ Register whose juridical roots are, firmly embedded or entrenched in the self same Electoral Act from which it (Voter’s Register), directly derives its sustenance and currency. Thus, any attempt to invest it (the Card Reader Machine procedure) with such overarching pre¬eminence or superiority over the Voters’ Register is like converting an auxiliary procedure – into the dominant procedure of proof, that is proof of accreditation.”
– PER M.L.GARBA,J.C.A
SMART CARD READER MACHINE – WHETHER THE SMART CARD READER MACHINE HAS ACQUIRED THE FORCE OF LAW UNDER THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999 (AS AMENDED), OR, UNDER THE ELECTORAL ACT, 2010 (AS AMENDED).
“Now, the main issue under consideration in this appeal vis-a-vis the Smart Card Reader Machine is whether it has acquired the force of law either under the Constitution of the Federal Republic of Nigeria, 1999 (as amended), or, under the Electoral Act, 2010 (as amended).
My Lord TANKO MOHAMMAD, JSC now CJN provides solution on pages 545F-H – 547A-H of the Report as follows:-
“The court below, then, to my understanding, raised the status of the Smart Card Reader Machine which came into play in the 2015 election through Manuals/Guidelines made by INEC to that of an Act (i.e. the Electoral Act). This is what the court below said:
‘My understanding of the above provision of the Electoral Act, 2010 as amended, is that the Act (sic: act) or omission of any Electoral official of INEC, which is contrary to the provisions of the Electoral Act committed after instruction or directive of INEC to its officials concerned can be a ground for questioning the election and it comes under Section 138(l)(b) of the Electoral Act, which is one of the grounds upon which the petition was predicated. A failure to follow [NEC’s Manual and Approved Guidelines and Regulations constitutes direct violation of sections 49, 57, 58, 73 and 74 of the Electoral Act. The Manual and Approved Guidelines form an integral part of law and regulations for the conduct of election and INEC officials must scrupulously and dutifully comply with it.” (see page 3008 of Vol.5 of record of appeal) (All Italics for emphasis)
– PER M.L.GARBA,J.C.A
LEGISLATION – DISTINCTION BETWEEN THE EFFECT OF A LAW MADE BY THE LEGISLATURE AND A RULE OF PROCEDURE
“Permit me, again, Your noble Lordships, to state, with emphasis, that the Card Reader was introduced by INEC with good intentions. However, a distinction must always be drawn between the effect of a law made by the legislature (National Assembly: i.e. the Electoral Act; the Constitution, etc) and a rule of procedure by whatever name called) by any other authority with a view to facilitating the smooth running or operation of a given institution.
Breach of the former can be severe and fatal than breach in case of the latter.” PER M.L.GARBA,J.C.A
“EXPERT” AND “OPINION” – DEFINITION OF “EXPERT” AND “OPINION”
Section 68 of the Evidence Act 2011 provides:-“68(1) When the court has to form an opinion upon a point of foreign law, customary law or custom, or of science or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, customary law or custom, or science or art, or in questions as to identity of handwriting or finger impressions, are admissible.
(2) Persons so specially skilled as mentioned in subsection (1) of this section are called experts.”
1. A.G. Federation & Ors Vs Alhaji Atiku Abubakar & Ors (2007) LPELR – 3 SC PAGES 198 per P. O. ADEREMI, JSC who said:-
“In legal parlance, an expert is any person who is specially skilled in the field he is giving evidence. But I hasten to add that whether or not such a witness can be regarded as an expert is a question for the Judge to decide. See Azu v. The State (1993) 6 NWLR (Pt.299) 303. The word “OPINION’ as it relates to an expert has been defined in The New Webster’s Dictionary of the English Language International Edition as: “a formal expression by an expert of what he Judges to be the case or the light course of action.”
– PER M.L.GARBA,J.C.A
EXPERT OPINION – WHEN IS THE OPINION OF AN EXPERT NECESSARY?
“It has been said that the opinion of an expert is always necessary where he (the expert) can furnish the court with scientific or other information of a technical nature that is very much or even likely to be outside the experience and knowledge of the Judge. See Seismograph Services Nigeria Ltd. v. Ogbeni (1976) 1 All NLR 198. But expert evidence on matters which reasonably fall within the knowledge and experience of the Judge or a tribunal may not be called. In fact, expert evidence is not usually admitted on questions of credibility of a witness even where the witness under consideration is a child. See “Blackstone’s Civil Procedure, 2004″ paragraph 52.2. In the two cases I have referred to above and in several other cases in which expert opinions were made use of by the courts, those experts were called as witnesses to testify before the court and he was subjected to cross-examination as to his qualifications, experience and the credibility of his opinion to enable the court determine whether his testimony is of any evidential value or not.”
2. Kaydee Ventures Ltd Vs The Hon. Minister Fct (2010) 2 NWLR (PART 1192) 171 AT 216H to 217A per MUHAMMAD, JSC.
3. Abiodun V FRN (2018) 1 NWLR (PART 1629) 86 AT 106 A-B per GALINJE, JSC.
– PER M.L.GARBA,J.C.A
HEARSAY EVIDENCE – INSTANCE WHEN EVIDENCE OF A STATEMENT MADE TO A WITNESS MAY OR MAY NOT AMOUNT TO HEARSAY
1. Dr. Olubukola Saraki V FRN (2018) 16 NWLR (PART 1649) 405 AT 449F-G per NWEZE, JSC who said:-
“Now, as it is well-known, hearsay evidence, oral or documentary, is inadmissible and lacks probative value, sections 37 and 38 of the Evidence Act, 20 11; Ozude v. Inspector General of Police (1965) I All NLR 102; Okoro v. The State (I 998) LPELR-2493 (SC) 17; B-C, (1998) 14 NWLRfPt. 584) 181; Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 1, 317; Doma v. INEC (2012) All FWLR (Pt. 628) 813,829, (2012) 13 NWLR (Pt. 1317) 297; Okpara v. Federal Republic of Nigeria (1977) NSCC 166; Management Enterprises v. Otusanya (1987) NSCC 577, (1987) 2 NWLR (Pt. 55) 179; Ojukwu v. Onwudiwe (1984) 1 SCNLR 247.”
2. Martin Opara V A.G. Fed. (2017) 9 NWLR (PT. 1569) 61 AT 113F – H TO 114 A – C per NWEZE, JSC who said:-
“Exhibit PD.III (Exhibit PDA) was, at page 39 of the record, admitted in evidence as the statement under caution of the victim, Micah Eteng Ibe, through the PWA, one Odudare Oluremi Fidelis, an intelligence Officer of NAPTIP who recorded it. Exhibit PD.III (Exhibit PDA) was no doubt admitted in evidence for a purpose. That is to establish the truth of what Micah Eteng Ibe, the victim, experienced in the hands of the appellant. To that extent it amounts to hearsay. On the other hand, if exhibit PD.III (Exhibit PD4) was admitted in evidence to merely show or establish the fact that Mr. Odudare Oluremi Fidelis fPW.4) , an investigator, interviewed and recorded a statement from the victim, Micah Eteng Ibe, it is not hearsay. This distinction was made in Kasa v. The State (1994) 5 NWLR (Pt. 344) 269 at 286 at paras. C-D by Uwais, JSC (as he then was) thus –
“Evidence of a statement made to a witness by a person who is, not himself called, as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by evidence, not the truth of the statement, but the fact that it was made”. See also Subramanian v. Public Prosecutor (1956) 1 WLR 965 at 970; Theophilus v. The State (1996) 34 LRC 74, (1996) 1 WLR (Pt. 423) 139″.
– PER M.L.GARBA,J.C.A
PLEADINGS – PARTIES ARE BOUND BY THEIR PLEADINGS
“The law needs no restatement because it is now sacrosanct that parties are bound by their pleadings and any evidence led which is at variance with the averments in the pleadings of the parties goes to and would not be granted by the Court. See:-
1. Godpower Orlu Vs Chief Godwin Onyeka (2018) 3 NWLR (PART 1607) 467 at 486H to 487 A-B per M. D. MUHAMMAD, JSC.
2. Hon Chief Ogbuefi Osomgbachi V Mr Denis Amadi & Ors (2018) 17 NWLR (PART 1647) 171 at 198 E-G per PETER ODILI, JSC.
3. Chief Timipre Marlin Sylvia & Anor Vs INEC & Ors (2018) 18 NWLR (PART 1651) 310 at 347 A-B Per I. T. MUHAMMED, JSC (now CJN) who said;
“Perhaps, I only need to remind ourselves that the settled principle of the law is that parties are bound by their pleadings. This principle of law is rightly supported by plethora of decided cases, for instance, this court held in Mogaji v. Cadbury Nig. Ltd. that in such an instance, the compound conflict can result in nothing less than the breakdown of the case for the plaintiff as set out in the pleading. Again, not very long ago, this court, per Tobi, J.S.C. (Rtd. and now late) in Odi v. Iyala (2004) 8 NWLR (Pt. 875) 283 at310D-E, held, inter alia:
“I cannot see better evidence against a party than one from a witness called by him who gives evidence contrary to the case of that party. This is because the party is calling the witness to testify in favour of his case as pleaded in his pleadings”.
It also follows that the brilliant address of counsel cannot take the place of pleadings and evidence which ought to be led through witnesses conversant with the fact in issue.
– PER M.L.GARBA,J.C.A
PLEADINGS – EFFECT OF A FAILURE TO LEAD EVIDENCE ON PLEADED FACTS
“Court do not accord or allocate votes to Parties in an election Petition or arbitrary evidence that has no support in the pleadings and evidence adduced before the Court. See Sylvia V INEC supra page 351F-G per I. T. MUHAMMED, JSC (now CJN) who again said:-
“It is clear from this piece of evidence that the appellants did not themselves know the number of votes alleged by them to have been cancelled by the 1st respondent. It is known to all that a court of law is not a magician who would begin to allocate votes and or reduce votes arbitrarily. It relies and makes its decision upon tested evidence placed before it.
So, as the appellants have failed to lead evidence as to the actual number of votes alleged to be cancelled at the Bayelsa State Government election held on 5th and 6th of December, 2015 and the 9th of January, 2016, their claim as pleaded goes to no issue at all, further, the case of Otti v. Ikpeazu (supra) relied upon by the appellants is not helpful to them as it is quite distinguishable from the present appeal.”
– PER M.L.GARBA,J.C.A
POLLING AGENT – EFFECT OF FAILING TO CALL A POLLING AGENT TO TESTIFY IN AN ELECTION PETITION
“On the fatal effect of failing to call a polling agent, the case of Agballah v. Sullivan Chime (2009) 1 NWLR (Pt. 1122) 373 at 433 – 434, para. H is relevant “Wherein it was held in part thus:
“None of the appellant’s party agents that allegedly represented the appellant at, signed and collected the said election results forms from the numerous polling units was, called to testify in the petition. A fortiori, the failure of the appellant to call the party agents that represented and served as his representative at the various polling units to give evidence was fatal to the petition.”
It is pertinent to restate that from the evidence of all the witnesses called by the appellants they admitted that their polling agents signed all the result sheets and did so voluntarily on the instruction of their party, the 1st respondent. The implication is therefore obvious as it would have authenticated the validity of the documents, in other words, the results sheets. The agents, law were all presumed to understand what they appended their signatures thereto. They could not in the circumstance have turned around to deny the contents of their signatures.
See the case of Egbase v. Oriareghan- (1985) 2 NWLR (Pt. 10) 884 ~ also that of Okoya v. Santilli (1994) 4 NWLR (Pt. 338) 256 at P. 280 – 281”. PER M.L.GARBA,J.C.A
NON-COMPLIANCE WITH THE PROVISIONS OF THE ELECTORAL ACT – DUTY OF A PETITIONER WHO ALLEGES NON- COMPLIANCE WITH THE PROVISIONS OF THE ELECTORAL ACT
“Where a petitioner complains of non-compliance with the provisions of the Electoral Act, he has a duty to prove the non-compliance alleged based on polling unit by polling unit. See again the case of Ucha Anor. v. Elechi & 1774 Ors (2012) 3 SC (Pt. 1) P. 26, (2012) 13 NWLR (Pt. 1317) 330.
It is therefore physically impossible for one person to have supervised the election in ten polling units given the fact that witnesses are to be called from each polling unit. See the case of Senator Julius Ali Ucha v. Chief Martin Elechi & Ors. (supra) 2012 3 SC (Pt. 1) p. 26, (2012) 13 NWLR (Pt. 1317) 330. There is also no evidence indicating or giving the reason why they (agents) were not called or available. The reports by the agents in respect of which all the witnesses spoke so much about were also not tendered in evidence. One therefore wonders whether the appellants were really set out to prove their petition.”
3. Andrew V INEC (2018) 9 NWLR (PART 1625) 507 AT 551 -552 and 566F-G and 582E-F.
No eye witness account was called by the Petitioners to proof the scathing allegations of crime and misconduct in electoral process”. PER M.L.GARBA,J.C.A
DOCUMENTARY EVIDENCE – WHETHER COURTS CAN ACCORD PROBATIVE VALUE TO DOCUMENTS DUMPED ON IT
“The Petitioners in effect dumped their exhibits on this all important issue of unlawfulness of votes on the Court without calling their makers or those with knowledge of the documents to testify. This Court is not in a position to use or accord them any weight or probative value. It is the bounden duty of the Petitioners to tie their documents/exhibits to this aspect of their case and to lead their witnesses to demonstrate the misapplication of votes complained of in their pleadings and other evidence of alteration, inflation or deflation of votes, racking up figure in favour of the parties by the Electoral Officials or other person. See:-
1. Ikpeazu V. Otti (2016) 8 NWLR (PT. 1513) 38 ATT 93 B per GALADIMA, JSC who said-
“It is settled law that a party who did not make a document is not competent, to give any evidence on it. This is the situation here PW19 did not make Exhibit PWC2, she cannot competently tender it. The maker must be called to testify to credibility and veracity.”
2. Senator Rashidi Adewolu Ladoja Vs Senator Abiola A. Ajumobi & Ors (2016) 10 NWLR (PT. 1519) 87 AT 146 F – H TO A – B Per Ogunbiyi, JSC who said:-
“This Court in the case of Omisore v. Aregbesola (20IS) 15 NWLR (Pt. 1482) 20S at 323/332 drove home the point when it held “Documentary evidence no matter its relevance cannot on its own speak, for itself without the aid of an explanation relating its existence.”
– PER M.L.GARBA,J.C.A
EVIDENCE ELICITED FROM A PARTY UNDER CROSS EXAMINATION – WHETHER EVIDENCE ELICITED FROM A PARTY UNDER CROSS EXAMINATION WHICH SUPPORTS THE CASE OF THE PARTY CROSS EXAMINING, CONSTITUTES EVIDENCE IN SUPPORT OF THE DEFENCE OF THE PARTY
“The trite position of the law is that a Defendant to an action or a Respondent in an election Petition is entitled to rest his case on that of the Claimant or the Petitioner where he has through devastating cross examination elicited or extracted sufficient evidence to support and prove the facts or assertions contained in his pleadings. In such circumstance a Defendant or Respondent can decide not to call any witness. It does not amount to not calling evidence or failure to call evidence. See Pastor Ize-Iyamu Andrew & Anor V INEC (2018) 9 NWLR (Part 1625) 507 at 582 E-F per KEKERE-EKUN, JSC who said:-
“With regard to the contention that the court below was wrong to affirm the finding of the Tribunal that the 1st respondent did not abandon its pleadings by failure to call evidence in support thereof, I hold the considered view that both lower courts were correct in their finding.
Having tendered documents in evidence, albeit from the Bar, and having thoroughly cross-examined and discredited the appellants’ witnesses, it could not be said that the 1st respondent had abandoned its pleadings. In Akomolafe v, Guardian Press Ltd. (2010) 3 NWLR (Pt 1181) 338 @351 F-H and 353-354 H-B, this court held:
“Evidence elicited from a party or his witness under cross-examination, which goes to support the case of the party cross- examining, constitutes evidence in support of the case or defence of the party. If at the end of the day the party cross- examining decides not to call any witness, he can rely on the evidence elicited from cross-examination in establishing his case or defence. One may however say that the party called no witness in support of his case, not evidence, as the evidence elicited from his opponent under cross- examination which are in support of his case or defence constitute his evidence in the case.,
“The exception is that the evidence so elicited under cross- examination must be on facts pleaded by the party concerned for it to be relevant to the determination of the question/issue in controversy between the parties having regard to the fact that the relevant evidence elicited from the appellants relate to the facts pleaded by way of defence to the action, they form part of the respondent’s case and can be relied upon by the respondents in establishing their defence to the action without calling witnesses to further establish the said defence.”
See also Adeosun V Gov., Ekiti State (2012) 4 NWLR (PT. 289) 581 AT 602, (2012) 1 SCM, 1, MTN V Corporate Comm. Invest, Ltd (supra) at 118- 119”. PER M.L.GARBA,J.C.A
ALLEGATION OF CRIME IN ELECTION PETITION – DUTY OF A PETITIONER AND STANDARD OF PROVING AN ALLEGATION OF CRIME IN ELECTION PETITIONS
“Pursuant to Section 135(1) of the Evidence Act and settled position of the law the Petitioners are under a duty to prove all the allegations under the two issues beyond reasonable doubt and by witnesses who can give an eye witness account of the allegations since they are all criminal in nature. See –
1. Udom Gabriel Emmanuel V. Umana & Ors (2016) 12 NWLR (PT. 1526) 179 AT 216, E-H TO 217 A, per NWEZE, JSC, who said:-In one word, the lower court, relying on an opinion in a Newspaper article, purported to abrogate section 135(1) of the Evidence Act, 2011 by judicial fiat. That section provides that:
“135(1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt. In my humble view, it is difficult to see how the lower court could have, legitimately, wished away the position of this court which, interpreting the above section, has maintained that a petitioner who makes an allegation of the commission of a crime the basis of challenging the election of a candidate who was returned, must prove that allegation beyond reasonable doubt. Buhari v. Obasanjo (2005) SCNJ 147; (2005) 13 NWLR (Pt. 941) 1; Nwobodo v. Onoh (1984) 1 SCNLR 1 at 28.
Now, as pointed out above, the allegations of violence, voter intimidation, hijacking and snatching of electoral materials, kidnapping, and others, (in paragraphs 27, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 54, 61(i-iv), 61(x), (xi), 72(H), 26 – 43, 76, 77, 78, 82, 83, 88 and particularly paragraph 15(1) of the first and second respondent’s petition are criminal in nature and ought to be proved beyond reasonable doubt.” 2. Alh. Adamu M. Waziri & Anor Vs. Alh. Ibrahim Geidam (2016) 11 NWLR (PT. 1523) 230 AT 277 H TP 278 A-D, per ONNOGHEN, JSC later CJN (Rtd.) who said:-
“In the case of Omisore v. AregbesoLa (2015) 15 NWLR (Pt. 1482) 205 at 234 – 235), this court has this to say: “I need to emphasize that in election petitions, where allegation of corrupt practices are made, the petitioner making these allegations must lead cogent and credible evidence to prove them beyond reasonable doubt because they are in the nature of criminal charges. Being criminal allegations, they cannot be transferred from one person to another. It is personal. Thus, it must be proved as follows:
(1) that the respondent whose election is being challenged personally committed the corrupt acts or aided, abetted, consented or procured the commission of the alleged corrupt practices, that where the alleged acts was committed through an agent, hat the agent was expressly authorized to act in that capacity or granted authority; and that the corrupt practice substantially affected the outcome of the election and how it affected it.”
3. Wike Ezenwo Nyesom V. Hon. Dr. Yakubu Peterside & Ors (2016) 1 NWLR (PT. 1512) 453 AT 532 H TO 533 A-G, per KEKERE EKUN, JSC, who said: –
“The law is trite that the results declared by INEC enjoy a presumption of irregularity. In other words, they are prima facie correct. The onus is on the petitioner to prove the contrary. See: Buhari v. Obasanjo (2005) 13 NWLR (Pt.941) 1; Awolowo v. Shag an (1979) 6 – 9 SC 51; Akinfosile v. Ajose (1960) SCNLR 447”. PER M.L.GARBA,J.C.A
NON-COMPLIANCE WITH THE PROVISIONS OF THE ELECTORAL ACT- DUTY OF A PETITIONER WHO ALLEGES NON-COMPLIANCE WITH THE PROVISIONS OF THE ELECTORAL ACT IN THE CONDUCT OF AN ELECTION
Section 139(1) of the Electoral Act, 2010 (as amended) provides:
“139(1) An election shall not be liable to be invalidated by reason of non-compliance with the provisions of this Act if it appears to the Election Tribunal or court that the election was conducted substantially in accordance with the principles of the Act and that the non- compliance did not substantially affect the result of the election.”
Where a petitioner complains of non-compliance with the provisions of the Act, he has an onerous task, for, he must prove it polling unit by polling unit,, ward by ward and the standard of proof is on the balance of probabilities. He must show figures that the adverse party was credited with as a result of the non-compliance e.g. Forms EC8A, election materials not signed/stamped by Presiding Officers. It is only then that the respondents are to lead evidence in rebuttal. See: Ucha v. Elechi (2012) 13 NWLR (Pt.1317) 330 at 359, E-G. It is also the law that where the commission of a crime by a party to a proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt. See: section 135(1) of the Evidence Act, 2011. The burden of proof is on the person who asserts it. See: section 135(1) of the Evidence Act 2011. See also: Abubakar v. YarAdua (2008) 19 NWLR (Pt 1120) 1 at 143, D; 144, B; Buhari v. Obasanjo (supra) Omoboriowo v. Ajasin (1984) 1 SCNLR 108; KctJc. 7.D.p>. (2014) 15 NWLR (Pt. 1430) 374 at 422 – 423, B-C.” 4. Pastor Ize-Iyamu Osagie Andrew & Anr. Vs. INEC & Ors (2018) 9 NWLR (PT. 1625) 507 at
“The appellants’ reliefs were founded on non-compliance with the provisions of the Electoral Act. The settled position of the law is that where a petitioner alleges non-compliance, he has the onus of presenting evidence from eye witnesses at the various polling units who can testify directly in proof of the alleged non-compliance, particularly where the allegations relate to non-accreditation/improper accreditation, inflation or reduction of scores, alteration of results, over voting, etc. See: Buhari v. Obasanjo (2005) 13 NWLR (Pt.941) 1 @315-316 B-C; Buhari v. LN.E.C. (2008) 19 NWLR (Pt.U20) 246 @ 391-392 H-A; Amosun v. LN.E.C. (2010) LPELR – 49431 @ 120-121, Okereke v. Umahi (2016) 11 NWLR (P.t.1524) 438 @ 473; Nyesom v. Peters ide (2016) 7 NWLR (Pt.1512) 452; Ucha v. Elechi (2012) All FWLR (pt.625) 237; (2012) 13 NWLR (Pt. 1317) 330”. PER M.L.GARBA,J.C.A
ELECTION PETITION – MODE OF PROVING ALLEGATIONS OF CORRUPT PRACTICES AND COMMISSION OF CRIMES IN ELECTORAL PROCESSES
“The position of the law is thus settled that a Petitioner who alleges non-compliance with the provisions of the Electoral in the conduct of election or in the Electoral process particularly in Polling Units where the election took place has the onerous duty of calling eye witnesses polling units by polling units to give evidence of the non-compliance. It is also apposite to say that the position of the law today as settled by this Court and by the ultimate court in the land, the apex Court is that where allegations of non-compliance with the provisions of Electoral Act and allegation of corrupt practice are made coupled with allegations of commission of crimes in electoral processes, eye witness account must be called and the allegations will have to be proved beyond reasonable doubt”. PER M.L.GARBA, J.C.A
POLLING AGENT – EFFECT OF A FAILURE TO CALL A POLLING AGENT TO GIVE EVIDENCE ON WHAT TRANSPIRED AT AN ELECTION
“The significance of the polling units agents cannot therefore be underestimated in the case at hand if the appellants must have the facts to prove their case. The best evidence the appellants could have had was that of the agents at the polling units who were physically on ground and in true position to testify as to what transpired at an election. The consequence of shutting them out for whatever reason is very detrimental to the appellants’ case. See the case of Hashidu v. Goje (2003) 15 NWLR (Pt. 843) 352 and Buhari v. Obasanjo (2005) All FWLR (Pt. 273) 1 at 164-165, (2005) 13 NWLR (Pt. 941) 1 at 248, paras. B-C wherein Ejiwunmi, J.S.C. said amongst others:
… The evidence required to establish a crime must be evidence of a witness who saw or heard or took part in the transactions upon which he was giving evidence. It is written law that hearsay evidence is not admissible for the purpose of establishing a crime. See section 77 of the Evidence Act… “On the fatal effect of failing to call a polling agent, the case of Agballah v. Sullivan Chime (2009) 1 NWLR (Pt. 1122) 373 at 433 – 434, para. H is relevant “Wherein it was held in part thus:
“None of the appellant’s party agents that allegedly represented the appellant at, signed and collected the said election results forms from the numerous polling units was, called to testify in the petition. A fortiori, the failure of the appellant to call the party agents that represented and served as his representative at the various polling unit to give evidence was fatal to the petition.”
2 Chief Alex O. Oke & Anor Vs. Dr. R. O. Mimiko & Ors (2014) 1 NWLR (PT. 1388) 332 at 376 D-H per PETER ODILI, JSC who said:
“On a revisit of the evidence of PW 45 who testified on what transpired in over 1000 polling units. That witness assumed the role of a polling agent whose Junctions are defined by section 45 of the Electoral Act. Polling agents represent the respective political parties at the numerous polling units in obvious recognition of the enormity of the task of those monitoring the election in all the polling units of the State. Even though the 1st appellant was at liberty to perform the duty of polling agent for himself and his party, being human he can only be physically present at only one polling unit at a given time and so cannot perform the same task with the same title as polling agent in any or all the other polling units and so when the evidence is to be provided as to what happened in disputed units other than the one he is physically available at then he is not qualified to testify thereto. This is because section 45(2) Electoral Act expects evidence directly from the relevant field officer at the required polling unit. Therefore when PW45 set out to testify as a State agent armed with all the evidence of what occurred throughout the State in relation to each polling unit, he did so under a misguided understanding of what the Electoral Act had prescribed. I place reliance on Buhari v. Obasanjo (2015) 13 NWLR (Pt. 941) 1 at 315; ACN v. Nyako (2012) 11 MJS 1 reported as A.C.N. v. Lamido (2012) 8 NWLR (Pt. 1303) 560”
3. Andrew V. INEC & Ors (2018) 9 NWLR (PT. 1625) 507 AT 563 H, per OKORO, JSC who said:
“It stands to reason that only persons who were physically present at the polling units who could give evidence as to what transpired there. They apparently failed to bring such category of witnesses to testify. As I had held before, this is the bane of Appellants case. See Oke v. Mimiko supra.”
– PER M.L.GARBA, J.C.A
ELECTION PETITION – EFFECT OF A FAILURE TO JOIN AS PARTIES TO AN ELECTION PETITION PERPETRATORS OF ALLEGATIONS OF CRIME COMMITTED DURING AN ELECTION
“What is more none of the personalities accused including the Security Agents are parties to these proceedings and this Court will be acting in violation of their right as enshrined in Section 36(1) of the Constitution 1999 as amended to adjudged them as guilty of the allegations against them in their absence. See Wire Ezenwo Nyesom V Hon. (Dr) Dakuku Adol Peterside & Ors (2016) 7 NWLR (Part 1512) 453 AT 536 C – G per KEKERE-EKUN, JSC who said:-
‘Furthermore, serious allegations of crime were made throughout the length and breadth of the petition, such as hijacking and diversion of election materials, illegal thumb-printing of ballot papers, falsification of results, violent attacks on voters, kidnapping, etc. The 1st and 2nd respondents had the burden of proving the allegations beyond reasonable doubt. Where crimes are alleged, the ingredients of the offences must be proved. This they failed to do. None of the alleged perpetrators was joined in the petition.
– PER M.L.GARBA, J.C.A
OVER VOTING AT ELECTION – PROOF OF OVER VOTING AT ELECTION
“The law is settled that the only way to prove over voting, inflation and deflation of votes at Polling Units or manipulation of voters registers by INEC Officials as pleaded by the Petitioners can only be proved; attained is achieved by a Petitioner, by tendering voters register and Forms EC8As, EC8Bs, EC8Cand all other relevant forms used in the election to enable the Petitioners show that if the figures of scores representing over voting is removed from the declared result the Petitioner would win.
The Petitioners failed to do in this case. No voters Registers were tendered and the Forms EC8As, EC8Bs, EC8Cs, EC8E and other forms tendered were not utilized or demonstrated before this Court by of the 62 witnesses called by the Petitioners. This no doubt is also detrimental to the Petitioners’ case. See:-
1. Senator Rashidi Adewolu Ladoja V Senator A. A. Ajimobi (2016) 10 NWLR (PART 1519) 87 at 147 H to 148 A – H per OGUNBIYI, JSC said:-
“It goes without saying that there are crucial electoral documents which must be tendered by a petitioner in proof of over-voting and how such must be tendered. The most important of such are the voters’ register used in the challenged election, and forms EC8A.
These are the documents which the appellant, through its witness PW 1, admitted they did not tender and thus an admission against interest. See Ipinlaye v. Olukotun (1996) 6 NWLR (Pt 453) 148 at 165. Also in the recent decision of this court in SC.907/2015 Mahmud Aliyu Shinkafi & Anor v. A. Abdularee; Abubakar Yari & 2 Ors (unreported) delivered on 8th January, 2016 (now reported in (2016) 7 NWLR (Pt. 1511) 340) it was held that:-
“To prove over-voting, the law is trite that the petitioner must do the following:-
1. Tender the voters register.
2. Tender the statement of results in the appropriate forms which would show the number of accredited voters and number of actual votes.
3. Relate each of the documents to the specific area of his case in respect of which the documents are tendered.
4. Show that the figure representing the over-voting, if removed would result in victory for the petitioner —.”
Also in the case of Ucha & Anor v. Elechi & Ors (2012) 13 NWLR (Pt.1317) 330 at 360, paras. E G it was held thus:-“When a party decides to rely on documents to prove his case, there must be a link between the document and the specific areafs) of the petition. He must relate each document to specific area of his case for which the document was tendered. On no account must counsel dump documents on a trial court. No court would spend precious judicial time linking documents to specific areas of the party’s case. See ANPP v. INEC (2010) 13 NWLR (Pt.1212) 549. ”
It cannot be over emphasized that a party must relate each document to specific area of his case without such link, no court would act on such dump documents.”
2. Great Ogburu & Anor Vs Senator Dr Okowa & Ors (2016) 11 NWLR (PART 1522) 84 AT 120E -H 121A-D per M. D. Muhammad, JSC who said:-
Learned senior counsel for, all the three respondents are absolutely right in their submissions that in spite of its introduction and the requirement by the 3rd respondent that the card reader be mandatorily used in the April 2015 Governorship Election in Delta State, the proof of over-voting which appellants allege has marred the election cannot and is not by reference to the card reader vis¬a-vis the actual votes cast at the election. Rather, the proof of the fact of over-voting still remains by reference to the voters register, which provide the number of accredited voters, vis-a-vis the number of votes actually cast as recorded in the Form EC8 series. In affirming its earlier decisions on the proof of substantial non- compliance with the Electoral Act as a result of over-voting, this court in one of its most recent and yet to be reported decision, appeal No. Sc. 907/20 IS, Mahniud Aliyu Shirikafi and Anor. v Abdulazeet Abubakar Yari delivered on January 2016. (2016) 7 NWLR (Pt. 1511) 340 at p. 38], paras. B-D, p, 382. paras, F-G restated the position of the law in spite of the advent of the card reader thus:-
“To prove over-voting, the law is trite that the petitioner must do the following:
1. Tender the voters register.
2. Tender the statement of result in the appropriate forms which would show the number of registered accredited voters and number of actual votes.
3. Relate each of the documents to the specific area of his case in respect of which the documents are tendered.
4. Show that the figure representing the over-voting if removed would result in victory for the petitioner.
– PER M.L.GARBA, J.C.A
DOCUMENTARY EVIDENCE – STATUS OF DOCUMENTS TENDERED FROM THE BAR WITHOUT CALLING THE MAKER
“The law is now firmly settled that when documents are tendered from the Bar or tendered by a person who is not the maker the Court cannot accord such documents any probative value unless the makers are called to testify on the documents and answer questions in cross examination on them. That the iron cast position of the law. See:-
1. Ikpeazu V. Otti (2016) 8 NWLR (PT. 1513) 38 AT 93 B per GALADIMA, JSC who said:-
“It is settled law that a party who did not make a document is not competent, to give any evidence on it. This is the situation here PW19 did not make Exhibit PWC2, she cannot competently tender it. The maker must be called to testify to credibility and veracity.”
2. Senator Rashidi Adewolu Ladoja Vs Senator Abiola A. Ajumobi & Ors (2016) 10 NWLR (PT. 1519) 87 AT 146 F -H TO A – B per Ogunbiyi, JSC who said:-“This Court in the case of Omisore v. Aregbesola (2015) IS NWLR (Pt. 1482) 205 at 323,332 drove home the point when it held “Documentary evidence, no matter its relevance, cannot on its own speak for itself without the aid of an explanation relating its existence.”
At page 614G of the record, the lower court found that PW1, not being the maker of exhibits 1-192, 201 and 203-216 was not competent to lead evidence on the contents of those documents. It is also held that PW1, not being a polling unit or ward agent for the appellant was not privy to the making of any of the electoral forms or documents neither was he present when they were made. This was how their Lordships concluded on PW1.
“Any evidence so adduced by him as to the contents of those documents would be hearsay and therefore inadmissible.”
The view taken by the lower court cannot be faulted, more so where the appellant has not presented any cogent argument to the contrary upon which this court may be invited to interfere with the well-reasoned finding of the lower court. Premised on the unassailable and the detailed review, of the evidence of PW1 by the lower court therefore, it was proper that it upheld the decision of the trial Tribunal in rejecting the report/analysis qua opinion of PWl.”
3. E. N. Okereke Vs Nweze David Umahi & Ors (2016) 1 NWLR (PART 1524) 438 AT 472 A – H per NWEZE, JSC who said:-
“Surely, since the witness (PW1), was not “in any polling unit in Ebonyi State on the day of election”; “had never worked at INEC office”; “did not participate in the off¬loading of information from the Card Reader Machine to the INEC Data base” and “was not part of the team that came to Abakaliki for the exercise”, the lower court, rightly, affirmed the position of the trial Tribunal that no weight could be attached to his evidence for he was “ignorant of\their) content”. As this court explained in Buhari v. LN.E.C (2008) 18 NWLR (Pt. 1120) 246, 391 – 392, paras H-A.
“Weight can hardly be attached to a document tendered in evidence by a witness who cannot or is not in a position to answer questions on the document. One such person the law identifies is the one who did not make the document. Such a person is adjudged in the eyes of the law as ignorant of the content of the document.”
4. Udom Gabriel Emmanuel Vs Umana Okon Umana & Ors (2016) 12 NWLR (PART 1526) 270 at 286 G – H TO A – B per NWEZE, JSC who said:-
“However, I wish to further emphasize on the rather reckless behavior of the court below in refusing to be guided by the decision of this court but relied on its own decision to decide that it was unnecessary to call the makers of documents exhibits 317 and 322 to testify in this case. The law is well settled that documents produced by parties in evidence in course of hearing are to be tested in open court before the court can evaluate them to determine their relevance in the determination of the case upon which the documents are relied upon. For this reason, any document tendered from the bar without calling the maker thereof attracts no probative value in the absence of opportunity given to other party to cross-examine for the purpose of testing its veracity. See Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205 at 322-323 which the court below refused to apply in place of its own decision in Aregbesola v. Oyinlola (2011) 9 NWLR (Pt. 1253) 458. See also the cases of Sa’eed v. Yakowa (2013) 7 NWLR (Pt.1352) 124 at 149-150 and Osigwelem v. INEC (2011) 9 NWLR (Pt. 1253) 425 at 451.
5. Bashiru Popoola V The State (2018) 10 NWLR (PART 1628) 485 AT 498 H TO 497 A-B per RHODES-VIVOUR, JSC.
This Court is duty bound to follow and ensure the enforcement of all the decision of the apex Court cited above”.
– PER M.L.GARBA, J.C.A
DUMPING OF DOCUMENTS – POSITION OF THE LAW ON DUMPING OF DOCUMENTS ON COURT
“The Respondents are therefore right in their submissions that the Petitioners dumped on the Court all the documents tendered from the Bar particularly Forms EC8As, EC8Bs, EC8Cs, EC8G, EC8E and among other documents. None of them was utilized by any of the 62 witnesses who testified on behalf of the petitioners and as such the said documents have no evidential value. See
(1)Mr. Labaran Maku V. Alhaji Umaru Tanko Al-Makura 7 Ors (2016) 5 NWLR (PT. 11505) 201 AT 221 E-H to 223 A, per M. D. MUHAMMAD, JSC who said:
“It is incumbent on him, in addition to pleading material facts which constitute miscalculation of votes or falsification of results, to plead such other malpractices and non-compliance with the Electoral Act and to further lead evidence in support of these pleadings. The tribunal at page 3115 of the record found that appellant only “dumped” the various documents on it did not tie them to specific aspects of his case”.
The reliance of the two courts on the decisions of this court in determining the fortunes of appellant’s petition, given his failure to tie the various documents to specific aspects of his case, is as apposite as it is mandatory. In Abubokar v. Yar’adua (2008) 18 NWLR (Pt.U20) 1 at 173 paras. D-F this court re-stated the principle thus:
“A petitioner who contests the legality or lawfulness of votes cast at an election and subsequent return must tender in evidence all the necessary evidence by way of forms and other documents used at the election. He should not stop there. He must call witnesses substantially affected the result of the election. The documents are among those in which the results of the votes are recorded. The witnesses are those who saw it all on the day of the election not those who picked that evidence from an eye-witness. No, they must be eye witnesses too.”
See also Iniama v. Akpabio (supra); Ucha v. ELechi (supra) and Omisore v. Aregbesola (supra).”
And at page 230 of the report RHODES-VIVOUR, JSC said on pages 230 C-H to 231 A-B of the report thus: –
“Documents were tendered from the bar. It is the duty of the party tendering the said documents to relate each documents tendered to the part of the case he intends to prove. Both courts below were correctly of the view that the appellant failed to relate documents tendered to the part of the case he intends to prove. This could be very fatal, and usually is. Indeed in Ucha v. Elechi (2012) 13 NWLR (Pt. 1317) p. 330 @page 360, paras. E-H. On dumping of documents I said that:
“When a party decides to rely on documents to prove his case, there must be a link between the document and the specific areas of the petition. He must relate each document to the specific area of his case for which the document was tendered. On no account must counsel dump documents on a trial court. No court would spend precious judicial time linking documents to specific areas of a party’s case. See N.P.P. v. INEC (2010) 13 NWLR (Pt. 1212) p. 549. A Judge is to descend from his heavenly abode, no lower than the tree tops, resolve earthly disputes and return to the Supreme Lord. His duty entails examining the case as presented by the parties in accordance with standards well laid down. Where a Judge abandons that duty and starts looking for irregularities in electoral documents, and investigating documents not properly before him he would most likely be submerged in the dust of the conflict and render a perverse judgment in the process.”
Several documents after being admitted in evidence as exhibits were of no evidentiary value as there was no oral evidence to explain why they were tendered. It is the duty of appellant’s counsel to link documents tendered to specific areas of the appellant’s case, a procedure he failed to follow with obvious consequences. The well settled position of the law is that an appellate court (in this case this court) will rarely upset findings of fact made by a trial court and affirmed by a Court of Appeal. The reason is simple. Such findings were made by the trial Judge after cross-examination of witnesses, the Judge observing the demeanour of the witnesses, their reactions and assessing the veracity of their testimony. Such findings should not be treated lightly. But such findings of fact would be set aside by this court if found to be perverse, or cannot be supported from the evidence before the court, or there was miscarriage of justice. See Haruna v. A.-G., Federation (2012) 3 SC (Pt. IV) p. 40; (2012) 9 WLR (Pt. 1306) 419; Adekoya v. State (2012) 3 SC (Pt. Ill) p. 36 (2012) 9 NWLR (Pt.1306) 539; Anekwe & Anor. v. Nweke & 2 Ors. (2014) 4 SC (Pt. Ill) p. 65; (2014) 9 NWLR (Pt. 14J2) 353; Akoma & Anor. v. Osenwokwu & 2 Ors. (2014) 5-6 SC (Pt. IV) p. 1; (2014) 11 NWLR (Pt. 1419) 462. Both courts below were correct in their findings that relevant documents tendered by the appellant’s were not properly linked to specific areas of their petition. Ballot papers were not tendered, thereby resulting in serious flaws.” PER M.L.GARBA, J.C.A
DUMPING DOCUMENTS ON THE TRIBUNAL – WHETHER IT IS THE DUTY OF THE TRIBUNAL TO SORT OUT THE DOCUMENTS DUMPED BY A PETITIONER ON IT
“Pastor O. Andrew V. INEC (2018) 9 NWLR (PT. 1625) 507 AT 558 C-H TO 559 A-C per OKORO, JSC who said:
“On issue of dumping documents on the Tribunal, both the Tribunal and the court below are in concurrence that the appellants dumped their documents (Exhibits) on the tribunal. The court below said this much on page 13018 of the record of appeal (Vol. 14) as follows:
“What the law requires is that first of all, the maker of the document must tender it and testify to its contents. Then, the documents must be subjected to the test of veracity and credibility and where it involves mathematical calculations, how the figures were arrived at must be demonstrated in the open court and finally, the correctness of the final figure must also be shown in the open court. What the appellants did here was to dump the documents on the court by tendering it from the Bar, got a few witnesses to identify or recognize some of the documents and left the Tribunal to figure out the rest in its chambers is not the duty of the court to sort out the various exhibits, the figures and do calculations in chambers to arrive at a figure to be given in judgment particularly in an election petition which is challenging the number of valid votes scored by a candidate declared and returned as the winner of the election.”
– PER M.L.GARBA, J.C.A
ELECTION PETITIONS -WHETHER DOCUMENTS CAN BE TENDERED IN BULK IN ELECTION PETITIONS WITHOUT THE PARTY DEMONSTRATING SAME IN THE OPEN COURT
“Let me lend my voice to the trite position of the law which has been expounded in this court severally that tendering documents in bulk in election petition is to ensure speedy trial and hearing of election petitions within the time limited by statute. But that does not exclude or stop proper evidence to prop such dormant documents. As this court stated int4.c.N. v. Lamido (2012) 8 NWLR (Pt. 1303) 560 at 592, paras. C – F, it is not the duty of a court or tribunal to embark on cloistered justice by making enquiry into the case outside the open court not even by examination of documents which were in evidence but not examined in the open court. A judge is an adjudicator, not an investigator I need to state clearly that demonstration in open court is not achieved where a witness simply touches a bundle of numerous documents with numerous pages”. PER M.L.GARBA, J.C.A
DOCUMENT – WHETHER FRONTLOADING OF EVIDENCE AND TENDERING OF DOCUMENT IN BULK FROM THE BAR VARIES THE REQUIREMENT OF PROOF OF SUCH EVIDENCE
“The frontloading of evidence and tendering documents in bulk from the bar do not alter this requirement which is an element of proof. See Ogboru v. Okowa (2016) 11 NWLR (Pt. 1522) 84, Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205”. PER M.L.GARBA, J.C.A
DOCUMENTARY EVIDENCE – DUTY OF A PARTY TENDERING DOCUMENTS
“The law is clear on the duty of a party tendering documents to ensure that such documents qua exhibits are linked to the relevant aspects of his case to which they relate. See Ladoja v. Ajumobi (supra), Audu v. INEC (No.2) (2010) 13 NWLR (Pt. 1212) 456, Ucha v. Elechi (2012) 13 NWLR (Pt. 1317) 330 at 360”. PER M.L.GARBA, J.C.A
BURDEN OF PROOF IN CIVIL CASES –ON WHOM LIES THE BURDEN OF PROOF IN CIVIL CASES
“The Law is trite that he who asserts must prove such assertion. See Section 136(1) of the Evidence Act 2011. See also
Awuse Vs. Odili (2005) 16 NWLR (PT. 952); Mogaji Vs. Odofin & Ors. (1978) 4 SC 91 at 94; Elias Vs. Omodare (1982) 5 SC 25; Daodu Vs. NNPC & Ors. (1998) LPELR – 927 SC.
In Adighije Vs. Nwaogu (2010) 12 NWLR (PT. 1209) 419 at 463 this Court per Ogunwumiju JCA held that:
“Section 137 of the Evidence Act 2004 provides that for a burden of proof in civil cases. The burden of first proving the existence or non-existence of a fact lies on the party against whom the judgement of the court would be given if no evidence were produced on either side regard being had to any presumption that may arise in the pleadings. If such party adduces evidence which might reasonably satisfy a court that the fact sought to be proved is established, the burden lies on the party against whom judgment will be given if no more evidence were adduced, and so on successively until all the issues in the pleadings have been dealt with.”
Also in M.O. Kanu, Sons & Co, Ltd Vs. Nzeribe & Anor. (2014) LPELR (228390 CA at page 59, this court held per Abba Aji JCA (now JSC) as follows:
“The law is still trite that the party who asserts has the onus or duty to prove his assertion or claim by adducing credible evidence. By Section 136 of the Evidence Act, the burden of proof in civil cases lies on the party who would fail if no evidence at all was adduced on either side. Thus the onus or burden lies on the claimant to adduce credible evidence in proof of his claim, or defence, but strictly on the strength of his own case. The basis of proof in civil cases is on the balance of probability or preponderance of evidence so far adduced.”
– PER S.C.OSEJI,J.C.A
PLEADINGS – EFFECT OF FAILURE TO LEAD EVIDENCE IN SUPPORT AVERMENTS IN PLEADINGS
“The law is long settled that where issues are joined on any averments but no evidence is led to support such, the end result is that such averments are deemed abandoned and prone to be struck out. See Omoboriowo Vs. Ajasin (1984) LPLER -2643 (SC). In Magnusson Vs. Koiki & Ors. (1993) 9 NWLR (PT. 319) 287, the apex court also held that where a party’s pleadings is not supported by evidence, those paragraphs of the pleadings will certainly be deemed abandoned. Further in Cameroon Airlines Vs. Otutuizu (2011) 4 NWLR (PT. 1238) 512 their Lordships held per Rhodes Vivour JSC that: “Averments in pleadings are facts as perceived by the party relying on them. There must be oral or/and documentary evidence to show that the facts pleaded are true. Consequently, pleadings without evidence in support of it are worthless.”
See also Odunsi Vs. Bamabala (1995) 1 NWLR (PT. 374) 641 and Amaechi Vs. INEC & Ors. (2007) 18 NWLR (PT. 1065) 105.
On this premise, the position of the law is succinctly stated by the Supreme Court per Aloma Mukhtar JSC (as she then was) in the case of Newbreed Organisation Ltd. Vs. Eromosele (2006) 5 NWLR (PT. 974) 499 as follows:
“When a defendant refuses to adduce evidence in his defence and rests his case on the evidence of the plaintiff, then he has himself to blame if the trial court finds for the plaintiff based on his evidence as was done in the instant case. The position of the law is that where an adversary fails to adduce evidence to put on the other side of the imaginary scale of justice, a minimum evidence adduced by the other side would suffice to prove its case. See Braimoh Vs. Bamagbose (1989) 3 NWLR (PT. 109) 352 and Nwabuoku Vs. Ottih (1961) 2 SCNLR page 232.
– PER S.C.OSEJI,J.C.A
ELECTRONIC CARD READER MACHINE – WHETHER THE ADVENT OF THE ELECTRONIC CARD READER MACHINE SUPERCEDES THE VOTERS REGISTER
“I am however not oblivious of the present state of the law as enunciated by the Supreme Court in Nyesom Wike Vs. Peterside & Ors. (2016) 7 NWLR (PT. 1512) 452 or (2016) LPLER (40036) (SC) wherein it held per Kekere-Ekun JSC as follows:
“I had stated earlier in this judgment that INEC is to be commended for the innovation of the Card Reader machine to bolster the transparency and accuracy of the accreditation process and to maintain the democratic norm of “one man one vote” by preventing multi-voting by a voter. Nevertheless, Section 49(1) and (2) of the Electoral Act 2010 (as amended) which provide for manual accreditation of voters is extant and remains a vital part of our Electoral Law. The section provides thus: “49(1) Any person intending to vote with this voter’s card, shall present himself to a Presiding Officer at the Polling Unit in the constituency in which his name is registered with his voter’s card. (2) The Presiding Officer shall, on being satisfied that the name of the person is on the Register of Voters, issue him a ballot paper and indicate on the Register that the person has voted.”
In the recent decision of this Court in Shinkafi v. Yari (supra), Okoro, JSC stated thus:
“My understanding of the function of the Card Reader Machine is to authenticate the owner of a voter’s card and to prevent multi-voting by a voter. I am not aware that the Card Reader Machine has replaced the voter’s register or has taken the place of statement of results in appropriate forms.”
Again, Nweze, JSC in Okereke vs. Umahi & Ors (unreported) SC.1004/2015 delivered on 5/2/2016 reiterated the position thus at pages 33- 34:
“Indeed, since the Guidelines and Manual (supra), which authorized the use and deployment of the electronic Card Reader Machine, were made in exercise of the powers conferred by the Electoral Act, the said Card Reader cannot, logically, depose or dethrone the Voters Register whose juridical roots are, firmly embedded or entrenched in the selfsame Electoral Act from which it (Voter’s Register), directly derives its sustenance and currency. Thus, any attempt to invest it [the Card Reader Machine Procedure] with such overarching pre-eminence or superiority over the Voters’ Register is like converting an auxiliary procedure – into the dominant procedure – of proof, that is proof of accreditation.” Per KEKERE-EKUN, J.S.C ( Pp. 60-62, paras. D-B )
Also in Emmanuel Udom Vs. Umana (NO. 1) (2016) 12 NWLR (PT. 1526) 179, the apex court held that:
“Indeed, since the guideline and manual (supra) which authorized the use and deployment of the electronic Card Reader Machine, were made in exercise of the powers conferred by the Electoral Act, the said Card Reader cannot, logically depose, or dethrone the voter’s Register whose juridical root dare, firmly embedded or enthrenched in the self same Electoral Act from which it (the voters Register), directly derives its sustenance and currency. Thus any attempt to invest it (the Card Reader machine procedure) with such overarching pre-eminence or superiority over the voters Register is like converting an auxiliary procedure into the dominant method procedure of proof, that is proof of accreditation.”
Their Lordships per Rhodes Vivour JSC also noted at pages 86 to 87 of the LPELR that:
“The Electoral Act is an Act of the National Assembly. Section 49(1) and (2) makes it abundantly clear that on election day, a person would be allowed to vote if his name is on the Register of voters. There is no provision for Card Reader. The Card Reader is the brainchild of the former head of INEC. It has no statutory backing.”
Also, it was held by the Supreme Court in the case of INEC v. Peterside (2016) 7 NWLR (PT.1512) 555 AT 568. Per Mohammed C.J.N, (as he then was) that:
“However, in the present case the 1st and 2nd respondents/petitioners only relied on the second leg of paragraph (b) of section 138(1) of the Electoral Act, 2010 (as amended) to claim that the election in Rivers State was invalid only for failure for the officials of the appellant to comply with the appellant’s order on them to use Smart Card Readers for accreditation of voters for the election which the respondents/petitioners failed to relate to any provision of the Electoral Act to qualify as non-compliance with the provisions of the Act In this regard, I am of the view that the 1st and 2nd respondents/petitioners failed to prove their’ case at the Election Tribunal that the failure to use Smart Card Readers for accreditation of voters at the election had the effect of nullifying the entire election ill Rivers State.”
Okoro, J.S.C., held in his concurring judgment in page 570 thereof that-
“It is a serious error for anybody to elevate any directive of INEC far above the provisions of the Electoral Act. Where a party has complied with the provisions of the Electoral Act but is in breach of any directive of INEC, he cannot be said to have breached the provisions of the Electoral Act. In this case, the staff of the appellant herein, resorted to accreditation as contained in section 49 of the Electoral Act when the Card Reader Machine failed. I do not think that such decision can he elevated to the level of non-compliance envisaged in section 138(1) of the Electoral Act, 2010 (as amended).”
Sanusi, J.S.C., also held in his concurring judgment in page 572 thereof that –
“It needs be stressed here that the provisions of regulations contained in INEC’s Manual and Guidelines, should not by any means meant to have replaced amended provisions of tile Electoral Act or to override the provisions of the latter. Breach of the regulations or provisions do not mean breach of the Electoral Act, 2010 (as amended) and such breach could not amount to non compliance with the provisions of the Act. As 1 stated supra, the use of Card Reader is an innovation meant only to compliment and facilitate the method of accreditation as provided in section 49 of the Electoral Act.”
– PER S.C.OSEJI,J.C.A
ELECTRONIC CARD READER MACHINE -FUNCTION OF ELECTRONIC CARD READER MACHINE – PROCEDURE FOR ACCREDITATION AND VOTING UNDER SECTION 49 OF THE ELECTORAL ACT
“Furthermore, the Supreme Court noted in the case of Shinkafi V. Yari (2016) LPELR – 26050, that the function of card reader is solely to authenticate the owner of the voter’s card and to prevent multi-voting by a voter and cannot replace the voters register or statement of results in appropriate forms.
His lordship, Okoro, J.S.C., added in the case of Ogboru V. Okowa (2016) 11 NWLR (PT.1522) 84 at 129 that:
“Let me reiterate my views in many other decisions rendered in this court in the recent past that the introduction of the card reader Machine into election process in this country does not amend, set aside or abolish section 49 of the Electoral Act, 2010, (as amended). It is meant to complement the provision. Section 49 of the Act provides that a person intending to vote with his voters “card, shall present himself to a presiding officer at the polling unit in the constituency in which his name is registered with his voters” card. Secondly, the presiding officer, on being satisfied that the name of the person is on the register of voters, shall issue him a ballot paper and indicate on the register that the person has voted. This remains the law until the National Assembly amends the procedure for accreditation and voting provided in section 49 (supra). As I said, the appellants herein lost sight of this important provision. This is the bone of their case”.
– PER S.C.OSEJI,J.C.A
SMART CARD READER – WHETHER THE FUNCTION OF THE SMART CARD READER INCLUDES THE COLLATION OR DECLARATION OF ELECTION RESULTS
“In the light of the above set out decisions which represents the extant law vis-a-vis Smart Card Readers as a means of proving non-voting, over voting, transmission or non-transmission of election results, the issue of Smart Card Readers in the present discourse serves only the purpose of helping to improve the accreditation process during elections and as such complements the procedure set out in Section 49 of the Electoral Act 2010 (as amended), which provisions, I dare say, does not include recourse to a central server for the purpose of collation, or declaration of election results. This point finds expression in Section 63, 65, 69 and 74 of the Electoral Act 2010 as amended. They provide as follows:
“S.63.(l)The Presiding Officer shall, after counting the votes at the polling unit, enter the votes scored by each candidate in a form to be prescribed by the Commission as the case may be.
(2) The Form shall be signed and stamped by the Presiding Officer and counter signed by the candidates or their polling agents where available at the polling unit.
(3) The Presiding Officer shall give to the Polling Agents and the police officer where available a copy each of the completed Forms after it has been duly signed as provided in subsection (2) of this section.
(4) The Presiding Officer shall count and announce the result at the polling unit.
– PER S.C.OSEJI,J.C.A
ELECTION RESULT – PROVISION OF SECTION 71 OF THE ELECTORAL ACT ON THE MANDATORY REQUIREMENT IN POSTING ELECTION RESULTS ON THE INDEPENDENT ELECTORAL COMMISSIONS’ WEBSITE
“Albeit and for purposes of posterity, I will emphasis again that to all intents and purposes the law requires or mandates the 1st Respondent to operate a website under Section 71 of the Electoral Act which provides thus:
“S.71. The Commission shall cause to be posted on its notice board and website, a notice showing the candidates at the election and their scores; and the person declared as elected or returned at the election.”
The above set out provisions used the word shall which connotes mandatoriness or command. See Shettima Vs. Goni (2011) 18 NWLR (PT. 1279) 413; Ugba & Ors. Vs. Suswam & Ors. (2012) LPELR – 9726 (SC); Onochie Vs. Odogwu (2006) 6 NWLR (PT. 975) 65 at 89.
Furthermore, the posting of the results must be on the notice board and website. The word “and” is conjunctive which means that the result must not only be posted on the notice board, but also on the website. A website is defined by the English Dictionary as “a computer connected to the internet that maintains a series of webpages on the world wide web”. It also defines a server as “a digital computer that provides workstations on a network with controlled access to shared resources.”
-PER S.C.OSEJI, J.C.A
ELECTION – GROUNDS FOR QUESTIONING AN ELECTION
“Section 138(1)(a) and (e) of the Electoral Act, 2010, as amended by the Electoral (Amendment) Act No.25 of 2015, states thus –
“138(1) An election may be questioned on any of the following grounds, that is to say –
(a) that a person whose election is questioned was, at the time of the election, not qualified to contest the election;
(e) that the person whose election is questioned had submitted to the Commission affidavit containing false information of a fundamental nature in aid of his qualification for the election”.
– PER J.S.IKYEGH,J.C.A
WITNESS – NATURE OF EVIDENCE GIVEN BY AN AGED WITNESS
“A witness of 77 years, such as RW2, is indeed an old man who in virtue of advanced age would lean on the side of truth vide Nwawuba v. Enemuo (1988) 2 NWLR (pt.78) 581 at 595 where the Supreme Court held per the judgment prepared by Nnaemeka-Agu, J.S.C., (as he was, now of blessed memory) thus –
“It is a matter of common knowledge that old men …. often find it difficult to twist the truth”.
– PER J.S.IKYEGH,J.C.A
ELECTION TO THE OFFICE OF PRESIDENT – EDUCATIONAL QUALIFICATION FOR ELECTION TO THE OFFICE OF PRESIDENT OF NIGERIA UNDER SECTION 131(D) OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA
“Educational qualification for election to the office of President of Nigeria is stated in section 131(d) of the 1999 Constitution, as altered, thus –
“131. A person shall be qualified for election to the office of President if-
d. he has been educated up to at least School Certificate level or its equivalent”.
The educational threshold of “school certificate or its equivalent” in section 131(d) of the 1999 Constitution, as altered, is interpreted in section 318(1)(a) and (b) thereof in these words –
“School Certificate or its equivalent” means (inter alia at least) –
(a) a Secondary School Certificate or its equivalent or Grade II Teacher’s Certificate, the City and Guilds Certificate; or
(b) education up to Secondary School Certificate level”
– PER J.S.IKYEGH,J.C.A
PRESUMPTION OF LITERACY – ON WHOM LIES THE ONUS OF REBUTTING THE PRESUMPTION OF LITERACY
“Generally, there is a rebuttable presumption of literacy. A person is presumed literate until the contrary is proved by the person doubting or challenging that person’s literacy vide the cases of Anaeze v. Anyaso(1993) 5 NWLR (pt.291) 1, Otitoju v. Governor, Ondo State (1994) 4 NWLR (pt. 340) 518, Jibosu v. Obadina (1962) NRNLR 303, Ezeigwe v.Awudu (2008) 11 NWLR (pt.1097) 158 all cited with approval by the Supreme Court in the fairly recent case of Sunday v. F.R.N. (2019) 4NWLR (pt.1662) 211 at 229, 239”. PER J.S.IKYEGH,J.C.A
FALSE INFORMATION – WHAT AMOUNTS TO FALSE INFORMATION?
“Giving false information in an affidavit tantamounts to lying on oath. It is a criminal offence vide section 156 of the Penal Code which provides thus –
“Whoever, being legally bound by an oath or by any express provision of law to state the truth or being bound by law to make a declaration upon any subject, makes any statement, verbally or otherwise, which is false in a material particular and which he either knows or believes to be false or does not believe to be true, is said to give false evidence”.
– PER J.S.IKYEGH,J.C.A
CRIMINAL ALLEGATION IN ELECTION PETITION – PROOF OF CRIMINAL ALLEGATION IN ELECTION PETITION
“This is a criminal allegation which is directly in issue in the election petition which must be proved beyond reasonable doubt or with laser-like precision by the petitioners who had asserted in the petition that the information on the educational qualification of the 2nd respondent given on oath by the 2nd respondent to the 1st respondent in Exhibit P1, Form CF001, is false vide section 135 of the Evidence Act, 2011 (Evidence Act) which provides thus –
“135 (1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.
(2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.”
See also the cases of Mohammed v. Wamako and Ors. (2018) 7 NWLR (pt.1619) 573 at 588 and 591, Ikpeazu v. Otti (2016) All FWLR (pt.833) 1946, Saleh v. Abah (2018) All FWLR (pt.933) 944, Maihaja v. Geidam (2018) 4 NWLR (pt.1610) 454 at 486-489”. PER J.S.IKYEGH,J.C.A
PROOF – WHETHER PROOF BEYOND REASONABLE DOUBT IS ESTABLISHED BY MERE ASSERTION
“It is trite that he who asserts has the burden to prove the assertion or allegation and if the allegation or assertion is criminal in nature it must be proved beyond reasonable doubt by the person asserting it vide the case of Zaccala v. Edosa and Anor. (2018) All FWLR (pt.926) 1 at 34 per the lead judgment prepared by his lordship, Eko, J.S.C., to the effect that proof beyond reasonable doubt is not established by mere assertion”. PER J.S.IKYEGH,J.C.A
ALLEGATION OF FALSE DECLARATION – QUANTUM OF PROOF REQUIRED IN AN ALLEGATION OF FALSE DECLARATION
“Furthermore, the Supreme Court while considering similar issue inter alia of false declaration in the case of Maihaja v. Geidam (2018) 4 NWLR (pt1610) 454 at 486-489, held per the lead judgment prepared by his lordship, Bage, J.S.C., (now His Royal Highness, The Emir of Lafia)inter alia that—
“The necessary question is what must a party prove to succeed on the allegation of false declaration. The nature of evidence required in this kind of situation is similar to that of “mathematical precision” of two multiplied by two equals four (2×2-4).”
See also the case of Digai v. Nanchang (supra) at 64 where the Court held that –
” As I had indicated earlier in this judgment, this issue revolves on the two other issues already treated by me but in specific, hinges on the complaint of an alleged giving false information to the 3rd respondent by the 1st respondent.
Firstly, giving of false information either to the Police and in the instant case to the 3rd respondent certainly amounts to an allegation of the committal of a crime. Again, the standard of proof is beyond reasonable doubt, See section 138(1) of the Evidence Act”.
The quantum of proof beyond reasonable doubt would therefore be proof with “mathematical precision” as stated by the Supreme Court in Maihaja v. Geidam (supra)”. PER J.S.IKYEGH,J.C.A
DOCUMENTARY EVIDENCE – CONSEQUENCE OF A FAILURE TO COMPLY WITH THE REQUIREMENT FOR TENDERING DOCUMENTARY EVIDENCE UNDER SECTION 83 OF THE EVIDENCE ACT
“In addition, the video clip, Exhibit P80, is a piece of documentary evidence under sections 83 and 258 of the Evidence Act and required it to be tendered in evidence through the maker of the statement or the recorder of the interview or message who has personal knowledge of the matters dealt with by the statement or in performance of a duty to record information supplied to him by a person who had, or might reasonably be supposed to have personal knowledge of those matters.
None of the conditions in the proviso to section 83 of the Evidence Act (supra) that the document can be admitted in evidence if the maker of the statement is dead, or unfit by reason of his bodily or mental condition to attend as a witness, or the maker is outside Nigeria and it is not reasonably practicable to secure his attendance, or all reasonable efforts to find him have been made without success, or by the circumstances of the case the court is satisfied that undue delay or expense would otherwise be caused to procure the attendance of the maker of the statement to give evidence in court was met by the petitioners in this case to warrant the Court to act on the document, Exhibit P80, vide Madueke v. Okoroafor and Ors. (1992) 9 NWLR (pt.263) 69 at 81 and 83.
The Supreme Court also held in the case of Adegbite v. State (2018) 5 NWLR (pt.1612) 183 at 204 – 205 per the lead judgment prepared by his lordship, Galinje (Galumje), J.S.C., that¬
“The lower court was also right when it refused to accord probative value to the newspaper report and radio interview as newspaper report is not always the truth of its contents”.
– PER J.S.IKYEGH,J.C.A
‘CORRUPT PRACTICES’ – MEANING OF ‘CORRUPT PRACTICES’
“Bribery is an electoral offence under section 124 of the Electoral Act. It is a corrupt practice within the definition of the phrase rendered by the Supreme Court in the case of Yusufu v. Obasanjo (2003) 16 NWLR (pt.847) 544 per the judgment prepared by his lordship, Acholonu, J.S.C., as follows –
“The term ‘Corrupt Practices’ denote or can be said to connote and embrace certain perfidious and debauched activities which are really felonious in character being redolent in their depravity and want of ethics. They become hallmark of a decayed nature lacking in conscience and principles”.
– PER J.S.IKYEGH,J.C.A
ALLEGATION OF BRIBERY OR CORRUPTION – STANDARD OF PROVING AN ALLEGATION OF BRIBERY OR CORRUPTION
“The Supreme Court also held in the case of Waziri and Anor. v. Geidam and Ors. (2016) 11 NWLR (pt.1523) 230 following the cases of Nyako v. Balewa (1965) NMLR 257 and Alege v. Edun (supra) that allegation of bribery or corruption must be proved by the accuser beyond reasonable doubt by evidence identifying by name the voter(s) that were bribed”. PER J.S.IKYEGH,J.C.A
DOCUMENT – WHETHER THE INDEPENDENT ELECTORAL COMMISSIONS’ WEBSITE QUALIFIES AS A DOCUMENT UNDER SECTION 258(1) OF THE EVIDENCE ACT
“The website of the 1st respondent is doubtless a document within the meaning of section 258(1) of the Evidence Act which defines “document” as –
“(d) any device by means of which information is recorded, stored or retrievable including computer output”.
– PER J.S.IKYEGH,J.C.A
PUBLIC DOCUMENT – EFFECT OF FAILURE TO CERTIFY COMPUTER GENERATED DOCUMENT
‘’Proceeding on the footing that the ultimate source of the information and data contained in Exhibits P87, P88 and P89 were illegally obtained from the website of the 1st respondent, the computer print-out of the information and data in Exhibits P87, P88 and P89 should have been certified by the 1st respondent, a public body in custody of a public document, as secondary evidence under sections 102, 104 and 105 of the Evidence Act, as amended.
Exhibits P87, P88 and P89 were not certified therefore they have no evidential value – Kubor and Anor. v. Dickson and Ors. (2013) 4 NWLR (pt.1345) 534 at 579 per the lead judgment prepared by his lordship, Onnoghen, J.S.C., (later CJN) thus –
“The fact that the Exhibits are computer printouts or e-documents does not change their nature and character as public documents …”
His lordship, Ogunbiyi, J.S.C., had this to say in his judgment in pages 593 – 594 thus –
“Also and on the same footing is the document exhibit “L” which is a computer or internet generated document allegedly printed by the appellants from the website of the 3rd respondent. As rightly submitted on behalf of the respondents, by virtue of section 102(H) of the Evidence Act, such document is classified as public document and only a certified true copy of same is admissible in law. It follows therefore that the two exhibits V and V share the same fate and are rendered of no legal effect. The lower court was therefore on a sound footing in upholding the tribunal’s stand by expunging the documents. The following authorities are relevant in support: N.I.P.C. Ltd. v. Thompson Organization Ltd. (1969) 1 NMLR 99 at104; (1969) 1 SCNLR 279; Kankia v. Maigemu (2003) 6 NWLR (pt.817) 496 and Owonyin v. Omotosho (1961) 2 SCNLR 57”.
– PER J.S.IKYEGH,J.C.A
EVIDENCE – CONSIDERATIONS BY COURTS IN ADMITTING EVIDENCE OBTAINED IMPROPERLY
“Sections 14 and 15 of the Evidence Act, as amended, state –
“14. Evidence obtained –
(a) improperly or in contravention of law; or
(b) in consequence of an impropriety or of a contravention of a law, shall be admissible unless the court is of the opinion that the desirability of admitting the evidence is out-weighed by the undesirability of admitting evidence that has been obtained in the manner in which the evidence was obtained.
15. For the purposes of section 14, the matters that the court shall take into account include –
(a) the probative value of the evidence;
(b) the importance of the evidence in the proceeding;
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding;
(d) the gravity of the impropriety or contravention;
(e) whether the impropriety or contravention was deliberate or reckless;
(f) whether any other proceeding (whether or not in a court) has been oris likely to be taken in relation to the impropriety or contravention; and
(g) the difficulty, if any, of obtaining the evidence without impropriety or contravention of law.”
The website of the 1st respondent from which the information that was hacked being any device by means of which information is recorded, stored or retrievable as a computer output is a document under section 258(1) of the Evidence Act which should have been accessible to the petitioners for inspection for the purpose of filing and maintaining the election petition under section 151 of the Electoral Act empowering the Court to order for inspection of electoral documents and/or any other documents in the custody of the 1st respondent”. See Ladoja v. Ajimobi (2016) 10 NWLR (pt.1519) 98 at 168 – 159.
Consequently, the petitioners had no basis to side-track the law by benefiting from the hacked website of the 1st respondent through the machination of the whistle-blower thus resorting to self-help which the Supreme Court deprecated in the case of Governor of Lagos State v. Ojukwu (1986) 1 NWLR (pt.18) 621.
The law also frowns at a party benefiting from a wrongful act. Further, in the case of Torti v. Ukpabi and Ors. (1984) 1 SCNLR 214 at 239 – 240,Anialogu, J.S.C., expressed reservation on placing weight on evidence obtained by felonious means or by breaking the law, as in this case.
The criminal case of Sadau v. State (1968) 1 All NLR 125 following the Privy Council criminal case of Kuruma, son of Kaniu v. The Queen (1955) A.C. 197 on the propriety of illegally obtained evidence by way of illegal search of an accused person has to be appreciated against the background that criminal law is addressed to all and sundry and is for the protection of society in the pursuit of which the State and the citizenry are stakeholders. Therefore, incriminating relevant evidence found on an accused person by illegal means will meet the ends of justice on ground of overriding public interest for the protection of society by the State using the illegally obtained evidence to prosecute the accused whose remedy may lie in a civil action for damages against the State for the illegal search”. PER J.S.IKYEGH, J.C.A
“NAME” – DEFINITION OF “NAME”
“There should be no fuss over the name “MOHAMED” and “MUHAMMADU” because as held by the Court (coram: Nsofor, Ikongbeh, Onnoghen, Mika’illu, Ngwuta, JJ.CA) in Alliance For Democracy v. Fayose and 4 Ors. (2005) 10 NWLR (pt.932) 151 at 192 – 193 per the lead judgment prepared by Nsofor, J.C.A., thus –
“And I ask this: what, really, is in a name, or a name “cucullus non facitmonachum”.
Now, “name” derived from the Latin: nomen – nominis, in its noun form, (See Chambers Twentieth Century Dictionary at page 875) is defined to mean
“that by which a person or a thing is known or called, a designation.”
Of what concern or to whom does it matter if “A” chooses to be called or known by many, or very many names? I confess that I know of no legislation or a Decree in Nigeria restricting any person(s) to a number of names he may be called or known by. No such law!” PER J.S.IKYEGH, J.C.A
STATUTES REFERRED TO:
Constitution of Federal Republic of Nigeria, 1999 as amended.
Electoral Act 2010 as amended
Evidence Act, 2011
Local Government (Basic Constitutional and Transitional Provisions), Decree No.36 of 1998