All FWLR This Week: Whether Needless To Call Maker of CTC of Document to Testify When Tendered in Court

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Parties: Abubakar v. INEC

Court: Supreme Court

Justices:

  • I. T. MUHAMMAD CJN (Presided and Read the Lead Judgment)
  • OLABODE RHODES-VIVOUR JSC
  • OLUKAYODE ARIWOOLA JSC
  • JOHN INYANG OKORO JSC
  • AMIRU SANUSI JSC
  • EJEMBI EKO JSC
  • UWANI MUSA ABBA-AJI JSC

Citation: (2020) All FWLR (Pt. 1052) P. 898

Facts:

The Nigeria Presidential Election was contested by the 1st appellant (on the platform of the 2nd appellant) and the 2nd respondent who represented the 3rd respondent among other candidates. The 2nd respondent was declared and returned as the winner of the election. Dissatisfied, the appellants filed a petition in the Court of Appeal sitting as the Presidential Election Petition court on grounds that the declaration of the 2nd respondent as the President of Nigeria was not based on majority of lawful votes cast. They prayed for declaratory reliefs to the effect that the 2nd respondent did not win majority of the lawful votes cast, he was not qualified to contest the election and submitted false information for his qualification. The appellants further prayed for order; declaring the 1st appellant as the winner of the election, having polled majority of lawful votes cast and directing the 1st respondent to issue him the certificate of return as the duly elected President to be conducted. The respondents filed preliminary objection to the petition. The Tribunal dismissed the petition and affirmed the declaration and return of the 2nd respondent as the duly elected President of Nigeria.

Yet aggrieved, the appellants appealed to the Supreme Court contending that the lower court erred in holding inter alia; that the appellants failed to prove that the 2nd respondent did not win the election and was not qualified to contest same.

In determining the appeal, the Supreme Court considered the following statutes:

Section 131, 1999 Constitution:-

  1. 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.

Section 318, 1999 Constitution:- School certificate or its equivalent” means:-

(a) a Secondary School Certificate or its equivalent or Grade II Teachers 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

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(ii) attendance at courses and training in such institution 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 English language to the satisfaction of the Independent National Electoral Commission and

(d) any other qualification acceptable by the Independent National Electoral Commission.

Section 71, Electoral Act:- 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.

Section 31, Electoral Act, 2010- 31(1) Every political party shall not later than 60 days before the date appointed for a general election under the provisions of this Act, submit to the Commission, in the prescribed forms, the list of the candidates the party proposes to sponsor at the elections, provided that the commission shall not reject or disqualify candidate(s) for any reason whatsoever.

(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, High Court of a State or Federal Capital Territory, indicating that he has fulfilled all the constitutional requirements for election into that office.

(3) The commission shall within seven (7) days of the receipt of the personal particulars of the candidate, publish same in the constituency where the candidate intends to contest the election.

(4) Any person may apply to the commission for a copy of nomination from 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.

(5) Any person who has reasonable grounds to believe that any information given by a candidate in the affidavit or any document submitted by that candidate is false may file a suit at the Federal High Court, High Court if a State or FCT against such person seeking a declaration that the information contained in the affidavit is false.

(6) If the court determines that any of the information contained in the affidavit or any document submitted by that candidate is false, the court shall issue an order disqualifying the candidate from contesting the election. Section 239(1), 1999 Constitution:-

239(1) subject to the provisions of this Constitution, the Court of appeal shall, to the exclusion of any other Court in Nigeria, have original jurisdiction to hear and determine any question as to whether- (a) any person has been validly elected to office or President or Vice-President under this Constitution; or (b) the office of the President or Vice-President has ceased or (c) the office of President or Vice-President has become vacant.

Principles:

Whether needless to call maker of certified true copy of public document to testify when tendered in court

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“On issue of dumping of documents on the court below, the learned counsel for the appellants submitted that there was no need to call the makers of those documents tendered from the Bar because they were public documents duly certified. On page 37, paragraphs 7.17 of their brief, it is submitted thus:-

‘The Court of Appeal, based only on presumptions, held that the appellants required to call witnesses who have knowledge on the exhibits tendered even if the said exhibits are certified true copies. We submit that the lower court did not only ignore its duty, but its judgment also jettisoned trite position of law that when a public document is duly certified, there is no need whatsoever to call the makers of such documents or those knowledgeable on it to testify. We commend the case of Magaji v. Nigerian Army (2008) 8 NWLR (Pt. 1089) page 338.’

The version of the law I know on the subject (i.e. if there are other versions) is that when documents are tendered from the bar, such documents have no probative value until the makers of such documents are called to testify on the document and are subjected to crossexamination on them. It cannot be as argued by the learned silk for the appellants above. Whether it is a certified public document or any other document, the need for the maker to testify and be cross-examined on it has not yet been jettisoned by this court. I have read the case of Magaji v. Nigeria Army relied upon by the appellants. This court did not state as the appellants want us to believe. On pages 395 – 396 of the report, paragraphs H – C, this court, per Ogbuagu JSC (of blessed memory) held as follows:-

‘However, I have already stated that if the purpose of calling as a witness is just to tender a document, a trial court may dispense with the personal appearance of the person who recorded the contents of the documents such as the investigator in the instant case. Exhibit 1 although a photocopy, is/was certified. It is now settled that photocopies of documents must be certified. See section 111/112 of the Evidence Act. In the case of Daily Times Ltd v. Williams (1986) 4 NWLR (Pt. 36) 526 (referred to by the court below as Iheoma v. F.R.A. Williams), it was held that a photocopy of a certified document is admissible. So this authority, also puts the (sic) rest, the complaints in the appellants’ brief about the admissibility of the appellants’ statement or exhibit 1. As a matter of fact, in the case of International Merchant Bank (Nig.) Ltd v. Dabiri & 2 Ors. (1998) 1 NWLR (Pt. 533) 284 at 297 CA, it was held that photocopies of a certified true copy of a public document, needs no further certification under section 111(1) of the Evidence Act.’

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The above quotation from the case of Magaji v. Nigerian Army is very clear and unambiguous. There is nothing in that judgment which suggests that whenever a certified true copy of public document is tendered in court, the maker need not be called to testify. That would be strange. However, if the intention is just to tender the documents, of course, it can be done without the maker as was done in this case where tons of documents were tendered from the Bar. But if the intention is for the court to act on those documents, the makers must be called to speak to those documents and be crossexamined appropriately. It is then and only then that a court can attach probative value to it. See Andrew v. INEC & Ors.; Ikpeazu v. Otti (2016) All FWLR (Pt. 833) 1946, (2016) 8 NWLR (Pt. 1513) 38; Buhari v. INEC (2008) 18 NWLR (Pt. 1120) 246; Gabriel Udom Emmanuel v. Umana Okon Umana & Ors. (2016) 12 NWLR (Pt. 1526) 270 at 286. It is therefore not difficult to appreciate the court below when it held that the appellants merely dumped those documents on the court. The court is not permitted to go home and interrogate those documents privately in the inner recess of its chambers. This will amount to shopping for evidence, thus descending into the arena of the conflict. See Labaran Maku v. Umaru Tanko Al-Makura (2016) All FWLR (Pt. 832) 1606, (2016) 5 NWLR (Pt. 11505) 201 at 230. One wonders how the appellants expected judgment to be entered in their favour when they failed to do the needful in respect of those documents which were the pivot of their petition.”

Per MUHAMMAD CJN: [Pp. 993 – 995; paras. B – C]

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