By Prince Ikechukwu Nwafuru
The Court system in Nigeria is adversarial in nature and this places a duty on the judges to be impartial and passive in the course of proceedings.
The litigants and their lawyers play a more active role in the adjudicatory process. In the case of EHOLOR V. OSAYANDE (1992) LPELR-8053(SC), the Supreme Court noted that the role of the Judge in adversarial system is to hold the balance between the contending parties and to decide the case on the preponderance of the evidence brought by both sides and in accordance with the rules of the particular court and the procedure and practice chosen by the parties in accordance with those rules. Under this system, judges are not permitted to do anything which can give the impression that he has descended into the arena as obviously, his sense of justice will be obscured.
This brings to mind the famous dictum of Oputa JSC (as he then was) in Josiah v. The State (1985) LPELR-1633(SC), which dictum, incidentally is anchored on the concept of the adversarial system. In this case the Law Lord noted that justice is not a one-way traffic. It is not justice for the appellant only. Justice is not even only a two-way traffic. It is really a three-way traffic – justice for the appellant (accused) of a heinous crime of murder; justice for the victim…, ‘whose blood is crying out to heaven for vengeance’ and finally justice for society at large – the society whose social norms and values had been desecrated and broken by the criminal act complained of. The Court of Appeal reiterated this three-pronged approach to justice in the case of SALISU & ORS V. ABUBAKAR & ORS (2014) LPELR-23075(CA).
Ideally, the afore-mentioned should form the philosophical fulcrum undergirding judicial decisions in Nigeria. In particular, as it relates to Election Petition, one is often reminded of the hackneyed phrase – the sui generis nature of Tribunal’s proceedings, which has often been cited as the basis for the peculiarity and distinctive jurisprudential leaning of Courts and Tribunals in formulating and restating principles in election Petition matters. At the risk of prolixity, one may be tempted to ask, why is election petition sui generis? Two reasons readily come to mind: First, time is of the essence in election Petition and the time is firmly entrenched in the Constitution and other Electoral laws. Election Petition Tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition. An election petition itself shall be filed within 21 days after the date of the declaration of result of the elections. An appeal from a decision of an election tribunal or Court of Appeal in an election matter shall be heard and disposed of within 60 days from the date of the delivery of judgment of the tribunal or Court of Appeal. To meet this timeline, Tribunals are permitted to sit on all days of the week including Saturdays and Sundays and processes can be filed at any time even at midnight as the Tribunal lacks the vires to extend time for any party or for itself. This time constraint alone places a lot of pressure on the Judges coupled with the volumes of documents often tendered by the parties in the course of the Hearing and the Judges are expected to consider every documents properly tendered and admitted in evidence and evaluate the oral testimonies of witnesses before giving judgment. As part of time and case management mechanism, Section 285(8) of the Constitution (as amended by the 4th Alteration Act, 2017) provides that the Tribunal or Court shall suspend its ruling on all preliminary objections and interlocutory applications touching on competence of the Petition or Pre-election matters and deliver such ruling at the stage of final judgment. The Supreme Court emphasised the time constraint in election Petition in the case of Oke v. Mimiko (No.1) (2014) 1 NWLR (pt. 1388)225 at 247 – 248 paras G – F,, thus:
“The general principle of the law is that election matters are SUI GENERIS. They are limited by time span especially the gubernatorial one. They cannot withstand everlasting time span (ad infinitum). They must be concluded within a given time span in order to allow the winning candidate (governor-elect etc) assume his responsibilities of the office. He has a very limited number of years. Time lapse will seriously affect his term of office unlike in other ordinary civil matters with no time bar. In any event, in all cases, there must be end to litigation.
The second reason that supports the sui generis nature of election Petition was stated by the Supreme Court’s decision in the case of BUHARI & ANOR V. YUSUF & ANOR (2003) LPELR-812(SC) where the Court emphasized the strictness of election petition proceedings and consequence of procedural blunder, viz:
“Election petitions are distinct from the ordinary civil proceedings: see Obih v. Mbakwe (supra) at p.200 per Bello, JSC; at p. 211 per Eso and Aniogolu, JJSC. It is such that in certain circumstances the slightest default in complying with a procedural step which otherwise could either be cured or waived in ordinary civil proceedings could result in fatal consequences to the petition. Examples are: Benson v. Allison (1955-56) WRNLR 58; Eminue v. Nkereuwen (1966) 1 All NLR 63 which were decided on failure to give security before presenting a petition as required by the rules; Ige v. Olunloyo (1984) 1 SCNLR 158, decided on application to amend the prayers sought in a petition, which application was brought after the time allowed for filing the petition. So an election petition is neither seen as a civil proceeding in the ordinary sense nor, of course, a criminal proceeding. It can be regarded as a proceeding sui generis.” (Underlined for emphasis)
The recent decision of the Court of Appeal in respect of the Presidential Election has generated some interesting comments from stakeholders in the legal industry. One of those reported comments is attributed to a respected learned Senior Advocate in the profession, J.S. Okutepa SAN. From his comments, the learned Silk, appeared to have differed on some of the positions taken by the Court of Appeal especially on the twin issues of dumping of documents and requiring a maker of public documents to give evidence and be cross examined. Before addressing the points raised by the very esteemed learned Silk, I must, with respect, reiterate the point I had made in other fora, to the effect that the position taken by the Court of Appeal on the issues of dumping of documents and asking the maker of documents to testify, is not new. The Court of Appeal simply followed the earlier Supreme Court decisions on the issues. For instance, in the case of EMMANUEL v. UMANA & ORS (2016) LPELR-40659(SC), on the need to call a maker of a public document to give evidence and be cross examined on the document, the Supreme Court in reiterating this principle came down heavily on the Court of Appeal for refusing to respect the doctrine of judicial precedent (stare decisis). In that case, the Petitioners had tendered some public documents without calling the makers of such documents to testify and be cross examined. In setting aside the decision of the Court of Appeal, the Supreme Court held as follows:
“However, I wish to further emphasized 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-examination for the purpose of testing its veracity, see OMISORE VS. AREGBESOLA (2015) NWLR (Pt.1482) 205 at 322 323 which the Court below refused to apply in place of its own decision in AREGBESOLA VS. OYINLOLA (2011) 9 NWLR (Pt.1253) 458. See also the cases of SA’EED VS. YAKOWA (2013) 7 NWLR (Pt.1352) 124 AT 149 150 and OSIGWELEM VS. INEC (2011) 9 NWLR (Pt.1253) 425 at 451.”
Interestingly and as can be seen above, the Supreme Court in coming to the above conclusion relied on its earlier decisions. Just very recently, the same Supreme Court in the case of PDP & Anor v. INEC & 2 Ors (SC.409/2019) (unreported), an Appeal arising from the Ekiti Governorship Election Petition filed by PDP and its Candidate to challenge the Ekiti Governorship election, reiterated the principle (Per Okoro JSC) at pages 22-23 as follows: “Even where the PW31 was able to link the documents tendered through the Bar with his testimony, such exercise will still make his testimony hearsay as the documents were not made by him and he cannot answer questions on them. I must state categorically that Exhibits tendered from the Bar as done in the instant case, without calling the makers thereof attract no probative value because there was no opportunity given to the Respondents to cross examine the makers for the purpose of testing its veracity. See Omisore v. Aregbesola (supra). The law is well settled that a Court is not allowed to embark on an inquisitorial examination of documents outside the Court room.”
Commenting on the need for Petitioners not to dump documents on the Tribunal without linking same to the aspect of the Petitioners’ case, His Lordship held that: “The law is trite that where 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 areas of his case for which the document was tendered. On no account must counsel dump documents on trial court. No court would spend precious time linking documents to specific areas of a Party’s case. See ANPP v. INEC (2010) 13 NWLR (Pt. 1212) 459, Ucha v. Elechi (2012) 13 NWLR (Pt. 1317) 330, Iniama v. Akpabio (2008) 17 NWLR (Pt. 1116) 225, Udom v. Umana (2016) 12 NWLR (Pt. 1526) 179.”
In essence, what the Supreme Court is saying in those cases is that a party who intends to rely on documents (public or private) must call the maker so that the opposing party is given the opportunity to cross examine and test the veracity of the documents. A party is also precluded from cross examining a witness with a document not made by him. If public documents can simply be tendered from the Bar without more, then all that the Petitioners need to do is to simply obtain the certified true copies of the documents and dump them on the Tribunal or Court. That will not meet the end of justice. More so in election Petition where parties often tender thousands of documents in just one case. As held by Courts in many other cases, to rely on the electoral documents in their dumped state was an open invitation to the Tribunal to do cloistered justice: a class of justice which is an affront to the tenets and spirit of the law.
Viewed differently, insisting that a party should link the documents tendered to its case will even go a long way in instilling discipline amongst litigants and minimize cases of fishing or trawling for evidence often engaged by some Petitioners. Experience has shown that some of those documents dumped on the Tribunal and Courts are often not necessary for the proof of the allegations made. Thus, it is demonstrating the relevance of these documents to the Petition that the cases are streamlined and this will afford the Tribunal or Court the opportunity to focus on real issues and do justice. The Parties having obtained the CTCs of these documents should be able to identify documents which ones are necessary for the proof of their case and then take steps to have relevant and appropriate witnesses give oral evidence on those documents. The presumption of regularity in favour of results declared by INEC can only be rebutted if the documents are demonstrated before the Tribunal or Court through the oral testimonies of the appropriate witnesses. The point being made is that there is no injustice in requiring a party to show how a particular document supports its case. With 180 days available to the Tribunal, most of which are lost during Pre-Hearing Session and other preliminary matters, it is near impossible to expect the Judges at the Tribunal to wade through thousands of documents tendered in the course of Hearing of Petition in search of irregularities when the party relying on such documents has not done what he is expected to do. As noted above, ours is an adversarial system where the Judges are expected to play more passive roles. The Judges cannot be more active than the litigants. They should not be expected to assume the responsibilities of the litigants either. The law does not give the Tribunal the licence to untie or disentangle the exhibits tendered by the Petitioners and fix them to their relevant units. That would smack of investigation of documents. A Court of law or Tribunal is an adjudicator, in the public, and not an investigator in the cosy of its chambers. See the case of Sijuade v. Oyewole (2012) 11 NWLR (Pt. 1311) 280.
The respected learned Silk, JS Okutepa in buttressing his points also made some arguments which deserve some response. I seek the Learned Silk’s permission to briefly highlight and respond to those points hereunder:
He asked the question, how do you expect staff of INEC to accept coming to give evidence against INEC? The answer is simple, apply for a subpoena to be issued against the staff of INEC in question. In most of the Tribunals, it is commonplace to see Petitioners apply for issuance of subpoena against INEC’s officials to come and give evidence and sometimes tender documents in support of the Petition. Compliance with those subpoenas has been high given the consequences of disobedience. The law is that where a subpoena is issued to produce a document, or to give evidence, the failure to appear and give evidence/tender document amounts to a contempt of Court and the person may be arrested. See Buhari v. Obasanjo (2005) 13 NWLR (pt.941) 1. Interestingly, most of the persons engaged by INEC during the elections are ad-hoc staff meaning that they do not owe any allegiance to INEC after the election. I beg to disagree with the greatest respect that the proviso in section 83(1)(b) of the Evidence Act 2011 will inure in favour of Petitioners who have not shown the steps taken to secure the attendance of those witnesses. To be sure, the proviso says that “the condition that the maker of the statement shall be called as a witness need not be satisfied if he is dead, or unfit by reason of his bodily or mental condition to attend as a witness, or if he is outside Nigeria and it is not reasonably practicable to secure his attendance, or if all reasonable efforts to find him have been made without success.”
The proviso is not automatic as the Petitioners will need to first prove and justify the application of the exceptions. Moreover, with the peculiarity of election petition, it will be risky to apply the proviso under section 83(1)(b) willy-nilly without exhausting all the options available to the Petitioners. Lastly on this point, in election Petitions, the Respondents often reserve their objections to documents tendered by the Petitioners and it is hardly the case that documents are tendered by consent or without objection. Even where that is done, the law permits the Court at the point of Judgment to disregard inadmissible evidence or document which was inadvertently admitted.
There was also the point made about who the maker of INEC documents is. And that such documents are made for INEC by some unknown persons. Again, I do not agree that the makers of INEC documents are unknown. The fact that the maker is not stated does not take away the fact the document was made by INEC and any official of INEC involved in the election in question can be called upon to produce and give evidence in respect of those documents. The question may be asked, who is usually in custody of those documents? Who usually certifies the INEC result sheets or Register of Voters or the electoral materials? Who made use of those documents in the course of the election? Answers to these questions will definitely lead one to the appropriate witness to testify on those documents. To be on a safe side, considering the requirement of law that allegation of irregularities in election Petition has to be proved polling unit by polling unit, the Presiding Officers and Supervisory Presiding Officers may be called to give evidence on documents used at the Polling Units while the Collation Officers are equally competent to testify on what happened at the collation centres. In the same vein, given the role played by the Electoral Officers and being the ones in charge of INEC Local Governments Offices, they are usually the ones in custody of the Register of Voters and can be called to tender and give evidence on same, except where the allegation relates to the polling units which may also require the inputs of polling officers.
On the point made by the Learned Silk that because the law allows the CTC of public documents to be tendered from the Bar, it is wrong for all the Courts to insist that such documents must be tendered by the maker before it can be given evidential value. With respect, can it be said that the Courts and Tribunals are wrong in insisting that the makers of the public documents be called to give evidence and be cross examined? From the authorities cited above, I do not think so, with the greatest respect. That is actually what the Supreme Court said should be done. The doctrine of judicial precedent mandates all Courts in Nigeria to follow and adopt the decisions of the Supreme Court. In Udom v. Umana’s case, the Supreme Court chastised the Court of Appeal for daring to depart from the earlier decision of the Apex Court on this same principle. It must be noted that the principle that permits the CTC of public document to be tendered from the Bar does not in any way derogate from the requirement of the law that the maker should be called to give evidence and be cross examined. The point being made is that the former merely makes such documents admissible by simply allowing the parties to tender from the Bar. The issue of weight is a different kettle of fish. To further buttress the jurisprudential and philosophical underpinnings that support the calling of the maker of (public) documents to give evidence, section 34 of the Evidence Act, 2011 provides as follows:
“34. (1) In estimating the weight, if any, to be attached to a statement rendered admissible as evidence by this Act, regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement, and in particular- (a) to the question whether or not the statement was made contemporaneously with the occurrence or existence of the facts stated, and to the question whether or not the maker of the statement had any incentive to conceal or misrepresent facts; and (b) in the case of a statement contained in a document produced by a computer- (i) the question whether or not the information which the statement contained, reproduces or is derived from, was supplied to it, contemporaneously with the occurrence or existence of the facts dealt with in that information, and (ii) the question whether or not any person concerned with the supply of information to that computer or with the operation of that computer or any equipment by means of which the document containing the statement was produced by it, had any incentive to conceal or misrepresent facts.”
Section 34 of the Evidence Act deals specifically with the issue of weight to be attached to documents (whether public or private) and the only way to satisfy the conditions above is to subject the maker to cross examination. In my view, there is no injustice in requiring a maker of document to come and give evidence. It is only where it is impossible or will occasion undue expenses to secure the attendance of such maker, that the exceptions will kick in. and like I said earlier, the onus is on the Petitioners, to satisfy the Court that they are entitled to rely on those exceptions under section 83 of the Evidence Act. Again, situations where public documents were tendered from the Bar with the consent of the parties and without objections should be distinguished from where the other Party objects to such documents. Each case has to be decided based on its peculiar facts. I also do not agree that the rebuttable presumption of genuineness of public documents under the Evidence Act has taken care of the issue of weight. With respect, that will be stretching the law beyond its elastic limits. The issue of presumption of genuineness goes more to admissibility than to weight. As noted above, section 34 of the same Evidence Act, 2011 deals specifically with the issue of weight which explains why public document can simply be tendered from the Bar and doing so cannot be the magic wand that confers all the weight and credibility on the said document.
The respected Learned Silk also made a very interesting point that documents speak for themselves and that a look at the said documents can prove the contention of the Petitioners in any election Petition. Yes, I do agree with him only to the extent that there is a general principle to the effect that documents speak for themselves, but it does not end there particularly in election Petition where proof is polling unit by polling unit. The Supreme Court was aware of this principle of documents speaking for themselves when Their Lordships mandate parties in election Petition in particular, to ensure that they properly linked their documents to the aspects of their case. There cannot be another way to satisfy the polling unit by polling unit proof requirement. I am not unmindful of the criticism that has greeted this polling unit by polling unit proof requirement, but that remains the law until it is reversed by the Supreme Court. I however, do not see such reversal anytime soon given that the polling unit is the foundation of the pyramid in election process. Both the Register of Voters and Form EC8As all relate to polling Units and it is only the polling agents, polling officers or registered voters who are competent to give evidence of what transpired at the polling unit. These witnesses are the ones who will speak to those documents and point out any irregularities therein (if any). There is no other way to satisfy this requirement, in my view. For instance, if a Petitioner alleges that there was disenfranchisement of voters in an election and then proceeds to tender the results sheets and Register of Voters without more. Will that suffice as proof of disenfranchisement? Not at all. The law still requires that the registered voters who were disenfranchised should be called polling unit by polling unit to give evidence. In their respective depositions, they can give evidence on how they were not allowed to vote in the election. In that hypothetical scenario, it will not be enough to simply tender the PVCs of such voters and the Voters Registers without the registered voters giving oral evidence. The same applies to the allegations of over-voting and non-accreditation. It is not enough to simply dump or tender the Register of Voters, Card Reader Report and the INEC results (the tripod documentary evidence upon which over-voting can stand). The law still requires that the witnesses, preferably the makers of these three documents should be called to speak to them and be cross examined. As I noted earlier, these documents often run into thousands and the Judges would not be expected on their own to start wading through the labyrinths of volumes of documents in search of irregularities. As noted by the Supreme Court (Per Fabiyi JSC) in the case of ACN V. LAMIDO & ORS (2012) LPELR-7825(SC) “It is not the duty of a court or Tribunal to embark upon 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.”
Indeed, the adversarial system we operate in Nigeria forbids a Judge from assisting any of the parties. A Judge cannot descend from his hallowed chambers into the arena in search of defects in documents tendered by the Parties. The duty is on the Parties to show how those documents support the case put forward. And they must do so in line with the evidential principles as adequate opportunity must be given to all the parties to exercise their right to fair hearing. After all, the essence of cross examination is to test the veracity of the evidence adduced in Court. As has been held by the Court, cross-examination occupies an Olympian position in the adjectival law. It is the index with which to measure the truth in evidence-in-chief of witnesses and documents tendered in Trial. The veracity of a witness under examination-in-chief and documents tendered through him is tested by the evidence elicited from him under the furnace of cross-examination.
Granted that there is a need for the review of the electoral laws to make elections in Nigeria more transparent and credible. However, this will definitely require the amendment of the existing electoral laws, and the law makers not the Judiciary are in the best position to effect such amendment. Judges are not law makers. As far as the evidential laws are concerned, mandating the makers of documents to testify and be cross examined remains a good law, in my view. I for one, do not support a review of evidential rules that will further over-burden the Judges who are already stressed, by turning them into investigators and inquisitors. The 180 days is hardly enough for the Judges not to talk of when they are now required to expend scarce judicial time in search of defects in documents dumped on them by litigants. It is common knowledge that our Judges are overworked and there cannot be justice when Judges are subjected to such rigorous exercise of wading through thousands of documents in search of evidence to support the Petitioners’ case. Justice is a three way traffic. Justice to the Petitioners, justice to the Respondents and justice to the general public who have interest in who should rule over them and whose resources are expended in conducting elections. It is true that documents speak for themselves but election Petition is sui generis and proof of allegation is usually polling unit by polling unit. In the same vein, requiring a maker of document to testify and be cross examined accords with the evidential rules and principles of fair hearing. There cannot be justice properly so called when all the parties are not given equal opportunity in judicial proceedings to test the veracity or otherwise of documents tendered in evidence. As an aside, it is also hoped that when the electoral system is made more transparent, losers in election will learn to accept defeat. By then, Nigerian politicians will emulate other politicians in developed democracies where election Petition is only filed in very rare cases. Nullifying an election is not a matter of course particularly when it is considered that tax payers money and huge resources are often expended in the process of organizing election or a re-run, not to talk of risk to the lives of those involved in the process. Election, being a very serious business should only be nullified when serious cases of irregularities and substantial non-compliances have been pleaded and proved by cogent and credible evidence and not based on sentiment nor emotive arguments nor political consideration. That is why the law provides under section 139(1) of the Electoral Act, 2010 (as amended) that: “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 this Act and that the non-compliance did not affect substantially the result of the election.”