The Court Is Duty Bound To Examine Tendered Documents By JS Okutepa (SAN) – TheNigerialawyer

On the 11th day of September 2019, the Court of Appeal as
Presidential Election Petition Tribunal delivered a unanimous
judgement in which their lordships dismissed the petition of Alhaji
Atiku Abubakar and that of his party PDP against INEC, President
Muhammadu Buhari and APC for lacking in merit and for lack of proof
as required by law.

In arriving at the unanimous decision the Court of Appeal
considered many issues raised and arrived at conclusion which in my
view was correct given the state of our law. Be that as it may, I
think some of the issues raised and considered in the judgment need
to be critically looked at and possibly a review of the stand taken
be corrected if we are not to discourage parties who lost elections
from taking their grievances to the Tribunals which have been
created to resolve electoral disputes.

For instance, I do not with respect agree with the position of
their lordships on the point that public documents duly certified
must per force be tendered by the makers before it can command
evidential value. Why should the maker of public documents be
called before it can command evidential value in our courts and in
electoral justice.

How do you expect staff of INEC to accept coming to give
evidence against INEC.

On this issue of calling the makers of public documents to
tender them, it is my submission that certified copies of public
documents can be tendered and acted upon in line with the decision
of the court in Salami vs Ajadi (2007) LPELR – 8622 (CA), where it
was decided that public documents can be tendered by the person to
whom they were issued to.

This is so because section 83(1) of the Evidence Act 2011 that
requires the maker of a document to be called is not an absolute
provision.

It allows some exceptions in the proviso to subsections 1 and 2
thereof. One of the exceptions is on the ground of undue delay.
Thus in Igbodim vs Obianike and Ors (1976) LPELR- 1448(SC) it was
held that documentary evidence can be admitted in court through any
witness by consent or without objection under section 83(2) of the
Evidence Act.

Furthermore, section 98(1)(b) of the Evidence Act has made it
unnecessary to call the maker of certified true copies of public
documents. This is what the section says: “A person seeking to
prove the due execution of a document is not bound to call the
party who executed the document or to prove the handwriting of such
party or of an attesting witness in any case where the person
against whom the document is sought to be proved –

(b) is a public officer bound by law to procure its due
execution and he has dealt with it as a document duly
executed”.

See also sections 146 and 148 of the same Evidence Act which
states that the courts shall presume every certified true copies of
public documents produced before it to be genuine.
Section 52 of the Evidence Act also makes entry in a public book or
record admissible and section 20 of the Evidence Act makes
statement made by a party in a document adverse to his case
admissible.

A question then may be asked, who is the maker of a public
document of considerable antiquities.

Or who is the makers of INEC voters Register or INEC electoral
materials or forms. The makers name is not indicated. At best they
are made for INEC by some Unknown human beings and it was the same
INEC that by law is obligated to give these documents upon
applications within 7 days. See section 77 of the Electoral Act
2010 as amended.

By section 151 of the Electoral Act, the court or Tribunal can
order INEC to give all Electoral materials to a party to prosecute,
maintain or defend petition as the case may be. Again by section 31
subsection 5 of the Electoral Act 2010 as amended, any person who
had reason to believe that information supplied to INEC by a
candidate in an election is false can apply to INEC for the copy of
form CF 001.

Normally public documents are usually given following the
procedure permitted by the Evidence Act for public documents.

So if the laws allow certified public documents to be applied
for and tendered even from the Bar why are our courts insisting
that such documents must be tendered by the makers before it can
command evidential value. There is no doubt that elections
materials can be produced based on orders of court for inspection
and for certified true copies to be made. See section 151 of the
Electoral Act. In some cases INEC produced these documents and give
based on the orders of courts or Tribunal. In some cases INEC may
admit the existence of these documents.

In the case of case Asafa Foods Factory Ltd vs Alraine (Nig) Ltd
and ors (2002) 12 NWLR (Pt. 781) 353, it was held that where a
defendant admitted a document pleaded by the Plaintiff, the
document is regarded as proved but the plaintiff must still tender
the document at the hearing so the court can interprete it
correctly.
In that case the defendant cannot object to the admissibility of
such document as it is already admitted.

It is my submission that a public document duly certified and
all necessary processes followed for its certification can be
tendered by the person to whom it was issued and or can be tendered
from the Bar and any witness can be shown the documents to relate
it to the aspect of the case for which the document was procured
for. The decision that such documents must be tendered by the maker
before it can command evidential value is contrary to the Evidence
Act and the interest of justice.

Election petition requires that justice be done without undue
technicalities. There is no doubt that electoral attrocities being
perpetuated by political hooligans has held our democracy in the
jugular and this should not be further encouraged by decisions that
can derail our democracy.

In most cases INEC staff who participated in the conduct of
elections are usually not seen. In some other cases most of them
will not want to appear to give evidence against their
employers.
Why then do we demand that makers of INEC documents be called
before weight can be attached to the documents.

On the issue of dumping which is acquiring unacceptable
notoriety of injustice I submit that except documents written in
language other than the official language of the court, the court
should be able to read the documents as long as the parties relate
them to the aspects of their case to which the documents
relate.
There is no need to start leading oral evidence thereto.

In the case of Dr Agagu vs RAHMAN Mimiko and Ors (2009) 7 NWLR
(Pt. 1140) 34 at 424 E-H to 425 A, Abdullahi P.C.A (as he then was)
had this to say on dumping in election matters:
“The contention of the learned senior Counsel for the appellant
that no modicum of oral evidence in chief was produced on the
documents is erroneous. The provisions of the Election tribunal and
court Practice Directions dispensed of oral evidence-in-chief. The
witnesses are to enshrine their evidence-in-chief in depositions
which will be adopted at the trial by the deponents who will then
be cross-examined and be re-examined. See Paragraph 4(1) and (3) of
the Practice Directions which provides as follows:

“4(1) Subject to any statutory provisions or any provisions of
these paragraphs relating to evidence any fact required to be
proved at the hearing of a petition shall be proved by written
deposition and oral examination of witnesses…

(3) There shall be no oral examination of a witness during his
Examination-in-Chief except to lead the witness to adopt his
written deposition and tender in evidence all disputed documents or
other exhibits referred to in the deposition.”

Also in case of Terab vs Lawan (1992) 2 NWLR(Pt.231) 569, it was
stated as follows:-“But one has to bear in mind the nature of Forms
EC8A and EC8B as exposed in Decree No. 50 of 1991. The two forms
are to show the polling station, the code number, the ward and the
Local Government Area they relate to. They are statutory forms and
when tendered give full and conclusive information needed for a
polling unit. A petitioner who tendered them in proceedings has by
so tendering them given all the relevant evidence which is
discoverable from the forms.

Is it reasonable for a tribunal to expect that when a Form EC8A
or EC8B is tendered the party tendering either will have to read
the contents of each form to the court as further evidence? I think
not. The forms themselves carry bold information to the polling
units to which they relate.

They can therefore be easily linked with particular areas and
facts pleaded. It is a misapplication of the principle in Duriminya
v. C.O.P. (Supra) to expect the petitioner to come and read a fresh
to the court the same evidence already contained in the exhibits
which were tendered and received without objection. The tribunal
erred seriously by failing to see that forms EC8A and EC8B are
statutory forms complete on their own as to their source and
purport and which cannot therefore be equated with ordinary
documentary exhibits.”

It is my submission that where Petitioners in election petition
cases tendered in evidence the certified true copies of the voters
register as well as the various forms used by INEC in conduct of
election it will be a grave disservice to justice and putting
roadblocks to justice to require such Petitioners to call makers of
the forms and then be giving oral explanations of the documents
before the court can give justice. It is submitted and this is
settled law that whosoever obtains a certified true copy of a
public document is competent to tender such before a court. See
Agagu vs Dawodu (1990) 7 NWLR (Pt.160) 56 at 66.

The law is that the documents speak for themselves and a look at
the said documents can prove the contention of Petitioners in an
election petition.

In Usman Dan Fodiyo University, Sokoto vs Prof S. U. Balogun and
Or. (2006) 9 NWLR (Pt.984) 124, it was held that: “Documentary
evidence where this is relevant ought to be produced and tendered
as they speak for themselves against the ipso dixit of a witness in
respect of such transaction which may not be readily accepted by
the court.

It is further submitted that a court has a duty to evaluate
documents once tendered before it. See the case of Aregbesola vs
Oyinlola (2009) 14 NWLR (Pt.1162) 429 at 478, where it was held
that “I have observed that in election petition cases oral evidence
and/or the demeanor of witnesses are not as important and decisive
in settling the issues of documentary evidence tendered. Documents
used in an election and all documents containing facts relevant to
the issue in a petition are the best form of evidence in resolving
election matters”.

On Andrew vs INEC (2018) 9 NWLR (Pt. 1625) 507 at 673, the
Supreme Court held as follows: “There is no doubt that allegations
of lack of accreditation/improper accreditation, over-voting,
inaccurate ballot papers account can be established by documentary
evidence.

This can be done by examination of the voters registers and Form
EC8As used for the conduct of the relevant election”.

It is, therefore, my contention that there is a need for our
courts to reconsider their stand on the issues of who can tender
certified true copies of public documents and the weight to be
attached to it and the arguments that unless documents tendered are
demonstrated courts should regard them as dumping. If court cannot
look at documents tendered and interpret them and making meaning
out of it, then what is the duty of the court.