TEMITAYO FAWEHINMI & ANOR. V. DR. JOSEPH IRANOLA AKINLAJA & ORS.
(2010)LCN/3816(CA)
In The Court of Appeal of Nigeria
On Thursday, the 27th day of May, 2010
CA/B/EPT/346/2008
RATIO
EVIDENCE: REQUIREMENT OF A PARTY TO ADDUCE EVIDENCE IN A CASE
Generally, what is required of a party in a case is to adduce evidence to establish the fact or facts of his case. He may do so directly by his own credible and acceptable evidence or through the evidence of other witnesses called by him or by a combination of both. What is important is credible and acceptable evidence is led either to establish a fact in issue or to debunk that fact as the case may be. Therefore, there is no necessity for a party to a case to appear and give evidence in his case if otherwise he can establish his case or debunk the case of his adversary through other witnesses called by him.
See HUSSEINV. MOHAMMED (2005) 17 NWLR (PT. 954) 393 at 404, SHITTU V. FASHAWE (2005) 14 NWLR (PT. 946) 671 at 692. PER CHIOMA EGONDU NWOSU-IHEME (Ph. D), J.C.A.
EVIDENCE: PREROGATIVE OF A PARTY TO CALL OR NOT TO CALL EVIDENCE IN A CASE
No party to a case directs the conduct of another party’s case in any proceeding. A party may choose to call or not to call evidence in a case and even rely on the case presented by the other side. PER CHIOMA EGONDU NWOSU-IHEME (Ph. D), J.C.A.
APPEAL: ATTITUDE OF THE APPELLATE COURT TOWARDS INTERFERENCE WITH FINDINGS
It is also trite that, an appellate court will interfere with such findings when they have been made on legally inadmissible evidence or they are perverse or are not based on the evidence adduced before the trial court. See the cases of: (1) Nwachukwu v. Egbuchu (1990) 3 NWLR (Pt. 139) p. 435 at p. 437; (2) Iyaro v. State (1988) 1 NWLR (Pt. 69) p. 256 and (3) Onwunalu v. Uche (2010) 2 NWLR (Pt. 1179) p. 582. Therefore, such findings of the trial court become defective and are liable to be set aside on appeal. See also the cases of: (1) Obadara v. The President, Ibadan West District Grade “B” Customary Court (1964) 1 All NLR p. 331 and (2). Onwunalu v. Uche supra. PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.
JUSTICES
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
Between
1. TEMITAYO FAWEHINMI
2. PEOPLES DEMOCRATIC PARTY – Appellant(s)
AND
1) DR. JOSEPH IRANOLA AKINLAJA
2) INDEPENDENT NATIONAL ELECTORAL COMMISSION
3) RETURNING OFFICER, INDEPENDENT NATIONAL ELECTORAL COMMISSION, ONDO EAST/ONDO WEST FEDERAL CONSTITUENCY
4) RESIDENT ELECTORAL COMMISSIONER, INDEPENDENT NATIONAL ELECTORAL COMMISSION, ONDO STATE – Respondent(s)
CHIOMA EGONDU NWOSU-IHEME (Ph. D), J.C.A. (Delivering the Leading Judgment): The 1st Appellant herein who was the candidate of the 2nd Appellant, the Peoples Democratic Party (PDP), and the 1st Respondent, the candidate of the labour Party, contested the election into the House of Representatives for the Ondo East/Ondo West Federal Constituency held on 21st April, 2007. At the conclusion of the said election, the 2nd to the 4th Respondents declared the 1st Appellant winner.
Dissatisfied by the declaration, the 1st Respondent brought a petition against the Appellants and 2nd to 4th Respondents at the lower tribunal challenging the return of the 1st Appellant on the grounds that 1st Appellant was not duly elected by majority of lawful votes cast at the election and that the election was void by reason of acts that violated the Provisions of the Electoral Act 2006 including rigging, manipulation of election results, violence, thuggery, abduction and coercion of opponents, multiple ballot thumb printing, ballot box hijacking and other offences.
At the end of hearing, the lower tribunal in its Judgment nullified the return of the 1st Appellant and ordered a fresh election. Aggrieved by the Judgment of the lower tribunal, the Appellants brought the present appeal on 16 Grounds which are not necessary to be set out herein. The 1st Respondent cross appealed on six Grounds which are also not necessary to be set out here.
From the 16 Grounds, the Appellants distilled seven issues for determination. Those issues are:
“(1) Whether evidence elicited from a witness during cross examination can be ignored and discountenanced in the final evaluation of evidence merely because such evidence is contrary to the evidence of the said witness during examination in-chief. (Grounds 1, 2 and 14 of the Grounds of Appeal).
(2) Whether it is mandatory for the 1st Appellant to have personally given evidence as a witness in order to debunk allegations made against him by the Petitioner/1st Respondent.
(Grounds 6 & 12 of the Grounds of Appeal).
(3) “Whether the lower Tribunal was correct when it evaluated the evidence of the Petitioner/1st Respondent and assessed same on the scale of balance of probability.”
(Grounds 5 and 8of the Grounds of Appeal).
(4) Whether the lower tribunal can validly refuse to evaluate Exhibit 90 thereby failing to consider the effect that such evidence would have had on its decision.
(Grounds 3 and 9 of the Grounds of Appeal).
(5) Whether in the light of the totality of evidence adduced at the trial, it was right for the lower tribunal to hold that the Petitioner/1st Respondent has established all the allegations levelled against the Appellant/1st Respondent.
(Grounds 9, 10, 15 and 16 of the Grounds of Appeal).
(6) Whether the trial Tribunal can rely on the Exhibits “dumped” by the Petitioner in the light of Judicial/Authorities which established that such procedure would make the said Exhibits so “dumped” irrelevant.
(Ground 11 of the Grounds of Appeal).
(7) Whether the Petitioner’s case could have succeeded at the lower Tribunal in view of the apparent contradictions in evidence led on behalf of the Petitioner.
(Grounds 9 .and 16 of the Grounds of Appeal)”
The 1st Respondent/Cross Appellant reduced the issues arising from the Appellants/1st & 2nd Cross-Respondents’ Grounds of Appeal to two namely:
“(1) Whether the lower Tribunal exercised its discretion Judicially and Judiciously and properly evaluated the evidence both oral and documentary and material before it in holding that the 1st Respondent (as Petitioner) proved his petition and was entitled to Judgment resulting in the nullification of the election and return of the 1st Appellant as member of the House of Representatives for the Ondo East/Ondo West Federal Constituency of Ondo State following the election of 21st April, 2007. (Grounds 1, 2, 3, 4, 7, 12, 13 and 15).
(2) Whether the lower Tribunal having regard to the totality of the pleadings and material before it, it was correct in holding that the 1st Respondent (as Petitioner) proved his petition and was entitled to Judgment resulting in the nullification of the election and return of the 1st Appellant as member of the House of Representatives for Ondo East/Ondo West Federal Constituency of Ondo State following the Election of 21st April, 2007. (Grounds 5, 6, 8, 9, 10, 11 and 15.)”
In his brief in the Cross Appeal, the 1st Respondent/Cross Appellant identified three issues for determination as follows:
“(1) Whether the lower Tribunal in the circumstances before it failed to exercise its discretion properly when it wrongfully rejected in evidence several pieces of documentary evidence tendered before it by the Cross Appellant and thereby occasioned a miscarriage of Justice on the Cross Appellant.
(Grounds 1, 2, 3 & 4 of the Notice of Appeal of 11th July, 2008).
(2) Whether the lower Tribunal failed to exercise its discretion properly when by its Ruling of 9th April, 2008 it refused the Petitioner/Cross Appellant’s application for the re-opening of the hearing of the petition thereby occasioning a miscarriage of Justice on the Cross-Appellant. (Grounds 5 of the Notice of Appeal of 11th July, 2008).
(3) Whether having regard to the state of the pleadings, the totality of evidence (oral and; documentary) the state of the law, as well as of all the available materials before it, the lower Tribunal was wrong when it failed to accord, proper evaluation, weight and application to the respective evidence and testimony the 1st and 2nd Cross Respondents’ witnesses (RW1 – RW3, RW5 – RW11 and RW19 – RW26) in nullifying the election and return of the 1st.
Cross Respondent
(Ground 6 of the Notice of Appeal of 11th July, 2008.).”
The Appellants/1st and 2nd Cross-Respondents shall be referred to simply as Appellants, while the 1st Respondent/Cross Appellant shall be referred to as 1st Respondent in this Judgment.
Let me take the appeal of the Appellants before coming to the Cross Appeal of the 1st Respondent.
I have read the Grounds of Appeal of the Appellants and the issues distilled there from both in the Appellants’ brief of argument and in the 1st Respondent’s brief. I am of the view that the two issues raised in 1st Respondent’s brief encapsulate and cover the Grounds of Appeal of the Appellants and their seven issues. I shall, therefore, consider the appeal of the Appellants on the basis of issues raised in the Respondent’s brief as set out above as they encompass the issues raised in the Appellants’ brief.
Issue No. 1 deals with evaluation of evidence. In summary, the arguments of the (earned Appellant’s counsel, Chief Ayorinde SAN on this issue was that the evidence of PW4 in his Statement on Oath adopted in the lower Tribunal to the effect that there were electoral violence and malpractices during the election in the Federal Constituency on 21/4/07 was aptly contradicted by his evidence under cross-examination where he turned summersault and admitted that the election in his unit went on smoothly. It was, therefore, erroneous, it was submitted, for the lower tribunal which had earlier declined to treat this witness as a hostile witness to ignore and discountenance the contradiction as it did in its Judgment at page 1425 of the Record of Appeal and since the essence of cross-examination is to discredit a witness by exposing falsehood and extracting the truth, the lower Tribunal ought to have used the evidence of PW4 obtained under cross-examination to disbelieve the case of the 1st Respondent at the lower tribunal.
Chief Ayorinde further contended, that it was not mandatory for the 1st Appellant to give evidence personally to rebut the allegations of electoral malpractices made against him once there was evidence given on his behalf by witnesses called by him which effectively debunked those allegations. The evidence of PW4 under cross-examination, which admitted that the election was smoothly conducted it was submitted, supported the case of the 1st Appellant and debunked the allegation of electoral malpractices. Furthermore, the video tape recording, Exhibit 90, tendered by 1st Respondent’s witness, PW3, to show that there were electoral malpractices, it was argued, was found by the tribunal not to have shown any evidence of electoral malpractices alleged in the pleadings of the 1st Respondent. All these, it was argued, confirmed the evidence of the Appellants’ witnesses notably RW1 to RW3, RW7 to RW11 and RW13 to RW26 that the election was smooth and peaceful which made it unnecessary for the 1st Appellant to testify personally. It was, therefore, contended that the lower tribunal was in error to have held that the failure of the 1st Appellant to testify personally meant that the allegations of electoral malpractices leveled against him were true more so when those allegations were criminal in nature and required proof beyond reasonable doubt.
With respect to Exhibits C – C7 tendered by PW, 16, learned Appellants’ counsel submitted that those documents were merely dumped with the tribunal without evidence of their purport and essence and without tying each to a specific aspect of the case of the 1st Respondent.
It was therefore wrong, it was argued, for the tribunal to have relied on those Exhibits as it was not for it to speculate on those documents or itself link them to the case of the 1st Respondent.
In his reply on this issue, learned counsel for the 1st Respondent Mr. Baiyeshea SAN submitted that there was no contradiction in the evidence of PW4 and that the evidence of that witness which was limited to his Polling Unit even confirmed the allegations.
On Exhibit 90, learned senior counsel argued that it related only to a Unit in Ward 7. Counsel further argued that where there are both criminal and civil allegations of infractions in an Election Petition, the failure to establish the criminal allegations does not destroy the Petition where the civil allegations are established. Therefore, it was submitted, the fact that the tribunal after discrediting Exhibit 90 did not rely on it to destroy the case of the 151 Respondent did not occasion a Miscarriage of Justice if 1st Respondent was able to show that 1st Appellant did not win by a majority of lawful votes.
Finally, it was learned senior counsel’s submission on this issue that the failure of the 1st Appellant to testify to debunk the allegations, made against him amounted to admission of these allegations and therefore the lower tribunal was right in coming to that conclusion.
The main complaint on this issue and on all the Grounds of Appeal to which it relates hinge on evaluation of evidence. Let me start with the evidence of PW4 in respect of which the bulk of the arguments rest. The 1st Respondent as Petitioner in the lower tribunal had in his pleading attacked the result of the election on the ground, inter alia, that the election was void by reason of acts of malpractices including rigging, manipulation of results, acts of violence, thumb printing of ballot papers, hijacking of ballot boxes and other acts that violated the Provisions of the Electoral Act, 2006. PW4 was called as one of the witnesses to authenticate these allegations. In his evidence as verified by his Statement on Oath at pages 304 and 985 of the Record of Appeal, he sought to show that there were series of electoral violence and malpractices at the said election. However, under cross-examination, he turned summersault to admit that the election in his unit was smooth.
Apparently rattled by the turn of event in the evidence of this witness under cross-examination, it was sought by the 1st Respondent’s counsel to ascribe hostility to him. The lower tribunal was not persuaded to so treat him for in its ruling on that application it held at page 987 of the Record of Appeal thus:
“The witness evidence in-chief was direct without hostile animus towards the Petitioner’s case. The cross-examination only attempted to discredit the witness which, in any event, is the purpose of cross-examination. The fact that he has made averments; which are not palatable to the party who called him: under cross-examination does not warrant the court declaring him a hostile witness.” (Underlining supplied).
The effect of that observation, nay ruling of the tribunal, was that the witness was discredited under cross-examination and the case of the party calling him was destroyed to that extent for the essence of cross-examination is to discredit a witness called by, the opposite party thereby extracting the truth and exposing falsehood. Therefore, where a witness testifies in-chief in a material fact in controversy in a case, the other party should, if he does not accept the truth of that testimony, cross-examine him on that fact to expose the falsity of that testimony. See FATILEWA V. THE STATE (2007) 6 WRN 41 at 69 – 70.
This was what happened in the instant situation with the testimony of PW4. The controversy between the parties at the lower tribunal was whether or not the election was freely and fairly conducted. The 1st Respondent contended it was not, while the Appellants maintained that it was. Therefore, any evidence elicited to support the various positions of the parties was materially relevant and ought to be considered by the tribunal. The evidence of PW4 elicited through cross-examination supporting the case of the Appellants that the election was smoothly conducted was materially relevant and ought to be credited to the Appellants in the balance sheet of the tribunal’s evaluation for evidence elicited from a Plaintiff’s witness under cross-examination forms part of the case of the defence and where counsel by the skilful application of the weapon of cross-examination not only destroys the case of a Plaintiff but also brings out evidence in proof of the case of the defence, he can legitimately rely on such evidence elicited under cross-examination in establishing his case.
See AYOOLA V. YAHAYA (2005) 7 NWLR (PT. 923) 122.
Such evidence is as valid and authentic as evidence procured from evidence in-chief.
See GAJI V PAYE (2003) 8 NWLR (PT. 823) 583 at 603 – 604.
In the face of the evidence of PW4 under cross-examination, I do not agree with the submission of the learned counsel for the 1st, Respondent in his brief that PW4 did not contradict himself. He did, and the Appellants were entitled to take the benefit of that contradiction more so when by that evidence they were able to extract from him that the election was conducted smoothly. That is the very essence of all the legal authorities I have cited above; Besides, in refusing to treat PW4 as a hostile witness in its earlier ruling as requested by 1st Respondent’s counsel, the lower tribunal was not entitled to alter the effect of that ruling on the point by later in its Judgment, ignoring the relevant contradiction in the testimony of the same witness elicited in cross-examination which supported the case of the Appellants. On a proper appreciation of the binding effect of its own interlocutory decision, the lower tribunal should have held, at least, that in respect of the evidence of PW4 on the authenticity of the election, that evidence was contradictory and considered its effect on the case of the 1st Appellant rather than ignoring it.
The next point on this issue is the tribunal’s attitude to Exhibit 90. The 1st Respondent’s case was that the election was marred by electoral malpractices set out in his petition. Exhibit 90, the video tape coverage of the events at the election in one of the Wards was tendered in proof of the allegations. The tribunal watched the replay of the tape and came to the conclusion at page 1426 – 1427 of the Record of Appeal that the allegations were not borne out by the recording in Exhibit 90. The lower tribunal held that that Exhibit “will not go into the scale because it is not credible as the tribunal watched it and did not see soldiers colluding with anyone and did not see thugs as alleged.” This finding completely destroyed the allegation of electoral malpractices made by the 1st Respondent and it ought to have been scaled in favour of the Appellants by the lower tribunal. 1st Respondent’s counsel had contended at page 10 of his brief that this did not defeat the case of the 1st Respondent. If it did not, one wonders what else did. If the allegations of electoral malpractices which formed the fulcrum of the 1st Respondent’s case at the lower tribunal were not established there was scarcely anything left to his case to sustain it. He did not lead evidence to show that these failure notwithstanding, the number of votes he scored at that election were more than that scored by the 1st Appellant so as to bring his case within the principle of the decision in OMOBORIOWO V. AJASIN (1984) 1 SCNLR 105 at 152 – 153 relied upon by him. The arguments of learned counsel for the 1st Respondents are, therefore, non-sequitur. The lower tribunal was bound to reflect its finding that the allegations were not proved in its conclusion in relation to the case and not ignore the effect of those findings.
Again the lower tribunal held the view that the failure of the 1st Appellant to give evidence operated against him in relation to the, allegations of electoral malpractices made against him. The Appellants had submitted in their brief that once the 1st Appellant debunked the allegations through other witnesses, it was not necessary for him to give evidence, while the 1st Respondent argued in his brief that since the allegations were pinned against the 1st Appellant, he was bound to give evidence personally in rebuttal otherwise he was deemed to have admitted the allegations.
Generally, what is required of a party in a case is to adduce evidence to establish the fact or facts of his case. He may do so directly by his own credible and acceptable evidence or through the evidence of other witnesses called by him or by a combination of both. What is important is credible and acceptable evidence is led either to establish a fact in issue or to debunk that fact as the case may be. Therefore, there is no necessity for a party to a case to appear and give evidence in his case if otherwise he can establish his case or debunk the case of his adversary through other witnesses called by him.
See HUSSEINV. MOHAMMED (2005) 17 NWLR (PT. 954) 393 at 404, SHITTU V. FASHAWE (2005) 14 NWLR (PT. 946) 671 at 692.
I have already analysed the evidence of PW4 and the finding of the lower tribunal thereon as well as Exhibit 90 and the tribunal’s finding on it and condemned the manner in’ which the tribunal handled, the effect of those evidence which were clearly in support of the Appellants’ case that the election was smooth, free and fair. These evidence, on their own, rebutted the 1st Respondent’s allegations of electoral malpractices. In addition to these, were the evidence of RW1 to RW5, RW7 to RW11, RW13 to RW24 and RW26, who gave evidence of the conduct of the election in their respective areas as smooth and hitch free.
In its Judgment at page 105, the lower tribunal accepted the evidence of some of the above witnesses but turned round to hold that since no voters registers were tendered, their evidence could not go into the scale. With respect, that was approbating and reprobating. The burden of proving non-election was on the 1st Respondent who alleged that fact and in the face of the evidence of PW4 under cross-examination and Exhibit 90, that burden ought to have been held not to have been discharged. Therefore it was not necessary for the 1st Appellant to testify personally.
In the premises of all I have said above on this issue, that issue is bound to and is hereby resolved in favour of the Appellants against the 1st Respondent.
On the second issue, I have to say that most of the arguments of the parties in respect of the first issue were repeated in the second issue and most of the observations I made in relation thereto also apply to the second issue. However, I only need to advert to some additional arguments of the parties’ counsel not covered under the first issue and comment on them under this issue. Those arguments relate to the evidence of PW16 and the documents tendered by the 1st Respondent through him. The Appellants’ counsel Chief Ayorinde SAN had argued that the lower tribunal wrongly acted on Exhibits B – B2 (receipts) and C – C7 (voters’ registers) and Exhibits tendered by PW16 by merely “dumping” them on the tribunal without linking them by evidence to any aspect of 1st Respondent’s case or explaining the purport or relevance of the Exhibits to that case. He argued that it was not for the tribunal to speculate as to the purport of an Exhibit tendered by a witness. It was for the witness to link such an Exhibit with and tie it to the subject matter in dispute by evidence.
In his reply on this point, learned counsel for the 1st Respondent submitted that documentary evidence was one of the vital methods by which a Petitioner was required to prove the allegations in his petition. Therefore, he argued that a party in an Election Petition who relied on documentary evidence did not have to lead oral evidence to show the purport or reason for which he sought to tender documents particularly where the documents tendered were electoral documents which speak for themselves. He submitted that the Exhibits complained of were electoral documents being voters’ registers, result sheets and voters’ cards.
The evidence led through PW16 in tendering the documents complained of which were electoral documents was short. It reads, inter alia, thus:
“I applied for documents from INEC. I paid for them. I was issued with receipt. These are the receipts … If I see voters’ register relating to Ondo West I will recognize them. They are the registers. They are certified true copies for units 2, 3, 8, 10, 11, 13, 15 and 22 of Ward 2 Ondo West.”
From the foregoing evidence, it will be seen that this witness did not say why the Exhibits were being tendered nor what was in them that related to the case which 1st Respondent was making before the tribunal. No evidence was led either by PW16 or by any other witness, called by 1st Respondent to link, or relate those Exhibits to any aspect of the case of the 1st Respondent at the lower tribunal short only of a bald statement that they were paid for and certified true copies of them obtained.
In my humble but firm view there is no distinction between documents tendered in election matters and documents tendered in other non-election civil matters in relation to the nature of the evidence required to be led to tie them to the case of the party tendering them. The party tendering a document in a case, whether in an election case or in non-election cases, has a bounding duty of tying such document to specific aspects of the case for which the document is tendered by leading evidence of the purport of the document in relation to that aspect of the case. It is not for a court whether a regular court or an election tribunal to speculate on the purport of the document tendered in relation to the case. Documents just produced and tendered without more are merely “dumped” and have no probative or evidential value. See DOUKPOLAGHA V. ALAMEYESIGHA (1996) 6 NWLR (PT. 607) 512.
TERAB V. LAWAN (1992) 3 NWLR (PT. 231) 569 at 590.
The trial tribunal was, therefore, in error to have acted on those Exhibits without concrete evidence tying them to particular aspects of the 1st Respondent’s case. The second issue, on the basis of all I have said above and all I said in relation to the first issue is also resolved in favour of the Appellants and against the 1st Respondent.
The effect of these resolutions is that the lower tribunal wrongly evaluated the evidence led before reaching its conclusion for if it had rightly evaluated same, its findings would not have reached the conclusions it reached.
Although the ascription of probative value to evidence is a matter for the trial court which saw and heard the witnesses give evidence, there are circumstances in which an appellate court is at least equally, qualified and competent, and if the trial court draws mistaken conclusions from undisputable or established facts or wrongly arranges or presents the facts on which the foundations of a case rests, the appellate court should not abdicate its own responsibility and rubber stamp the error but should intervene and do what the justice of the case requires. See LAWAL V. DAWODU (1972) 1 All NLR (PT. 2) 270 – 271; (1972) 8 – 9 SC 3 at 83 – 127.
Therefore, this is a proper case calling for the intervention of this court as an appellate court. In the light of my conclusion that the evidence as presented at the lower tribunal were against the 1st Respondent as Petitioner therein and favoured the Appellants as 1st and 2nd Respondents. My finding is that the Petition ought to have been dismissed and the election or return of the 1st Appellant herein as 1st Respondent therein upheld. In the circumstance, all the grounds of appeal of the 1st and 2nd Appellants in the main appeal succeed and their appeal is allowed. The Judgment of the lower tribunal allowing the petition of the 1st Respondent as Petitioner at the tribunal is hereby set aside. In its place that petition is dismissed and the election and return of the 1st Respondent herein as the 1st Respondent at the lower tribunal is affirmed.
Now to the cross appeal of the 1st Respondent. The 1st Respondent had also filed a cross appeal in this matter by which he challenged the Judgment of the lower tribunal on six Grounds from which he distilled three issues for determination in which issues I had set out earlier in this Judgment.
The Appellants/Cross-Respondents adopted the issues raised by the Cross Appellant.
In his argument on the first issue, learned counsel for the Cross Appellant Mr. Baiyesha SAN contended that the lower tribunal wrongly rejected the voters’ registers tendered for certain Polling Units, the used and unused ballot papers, INEC result sheets EC8D (II) and EC8C (II) and letters of protest of the Cross Appellant and his party to INEC officials all of which were certified under Section 111 of the Evidence Act and duly pleaded by the Cross Appellant which rejection occasioned a Miscarriage of Justice.
In his reply on this issue the learned counsel for the Appellants/Cross-Respondents contended that the documents were rightly rejected for reason that they were neither dated nor bore the title of the certifying officer to show their authenticity.
Section 111(1) of the Evidence Act requires that:
“Every Public Officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees thereof, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies.”
(Emphasis supplied).
The mandatory requirements of Section 111(1) of the Evidence Act has been held in DAGASH V. BULAMA (2004) 14 NWLR, (PT. 892) 144 at 228 – 232 to be that the certificate on a public document must be dated, subscribed to by a public officer keeping custody of same with his name and official title and. where seal is necessary, such seal must be affixed.
By section 112 of the Act, it is only such document certified in the manner prescribed by Section 111(1) that is admissible in evidence.
I have carefully, closely and thoroughly examined the document subject of the complaint under this issue and I find that none of them complied with the mandatory provisions of Section 111(1) of the Evidence Act. None of the documents bore any date of certification nor did any reveal that the certifying officer is an officer of INEC as rightly found by the lower tribunal. The lower tribunal was, therefore, right in rejecting the documents. In the circumstance, this issue is resolved against the 1st Respondent/Cross Appellants in favour of the Appellants/Cross-Respondents. Grounds 1, 2, 3 and 4 of the Cross Appeal therefore fail.
On the second issue of the Cross-Appeal dealing with the refusal of the lower tribunal to re-open the hearing of the Petition after parties had closed their cases, learned counsel for Cross-Appellant argued that the failure of 3rd to 5th Respondents/Cross-Respondents to call evidence after the 1st and 2nd Respondents/Appellants had closed their case deprived him of the opportunity of confronting the said 3rd to 5th Respondents/Cross-Respondents with several electoral documents used at the election for which, by motion, he had sought to reopen his case which motion the lower tribunal refused. He argued that the tribunal had a duty to do substantial Justice under the Electoral Act.
In his reply on this issue, counsel for the Appellants/Cross-Respondents had contended that the lower tribunal rightly refused the application of the Cross Appellant to reopen his case.
Counsel argued that the purport of that application was asking the tribunal to call witnesses in order to sustain the petition as; held by the tribunal at pages 1319-1320 of the Records of Appeal. This, counsel argued did not consider the interest of the Appellants/1st and 2nd Cross- Respondents and the interest of Justice.
It must be noted that the parties were given ample opportunity to present their cases before the tribunal. No party to a case directs the conduct of another party’s case in any proceeding. A party may choose to call or not to call evidence in a case and even rely on the case presented by the other side. So the 3rd to 5th Respondents at the lower tribunal and Cross/Respondents in this appeal were not bound to call evidence either in rebuttal of the Cross Appellant’s case, or in affirmation of the 1st and 2nd Appellants case. It was for the Cross Appellant who knew his case to bring forth all materials and evidence relevant thereto before the tribunal.
Therefore, if he considered that there were documents vital to his cases which were in the possession of the 3rd to 5th Respondents/Cross-Respondents he ought to have said so at the earliest opportunity and before the closure of his case. It was not for the tribunal to do that for him.
He was the master of his case and had control over same. If he failed to do so when the opportunity was there and he had all the facts for his case, he cannot complain unless a fact arose ex-improviso which no human ingenuity could have foreseen. But in this case nothing arose ex-improviso which the Cross Appellant could not have foreseen. Therefore, the lower tribunal rightly exercised its discretion to refuse the application to re-open the case of the Cross Appellant. This issue is also resolved against the Cross Appellant and in favour of the 1st & 2nd Cross-Respondents. Ground 5 of the Grounds of Appeal in the Cross Appeal therefore also fails.
On the 3rd and final issue of the Cross Appeal which is on evaluation of evidence, counsel for the Cross Appellant contended that all the witnesses for the 1st and 2nd Appellants/Cross Respondents particularly RW1 – RW3, RW5 – RW17, and RW19 – RW26 were thoroughly discredited and their evidence controverted at the lower tribunal and therefore it was erroneous for the lower tribunal to have accepted those evidence.
In his reply on this issue, learned counsel for the 1st & 2nd Appellants/Cross-Respondents submitted that the lower tribunal was right in accepting the evidence of those witnesses on their voters’ cards.
I must say that I have considered this issue in my observations of the submissions of both counsel under the two issues identified in the main appeal of the Appellants. There is, therefore, scarcely any need to add to those observations as those observations also apply here. I adopt those observations and findings as applicable under this issue in the Cross Appeal.
In the premise, all the Grounds of Appeal in the Cross-Appeal fail. Consequently, the Cross Appeal fails and is hereby dismissed.
The 1st Respondent/Cross Appellant will pay the Appellant/1st and 2nd Cross-Respondents cost fixed at N10,000.00 (Ten Thousand Naira).
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I have been privileged to read in draft the lead judgment of my learned brother, C.E. Nwosu-Iheme, JCA. I agree in entirety with His Lordship’s line of reasoning and conclusions therein.
Regarding the appeal in the main, it is a general principle of law that an appellate court will not interfere with the findings of facts of the trial court where the findings are borne out of the evidence adduced before it. It is also trite that, an appellate court will interfere with such findings when they have been made on legally inadmissible evidence or they are perverse or are not based on the evidence adduced before the trial court. See the cases of: (1) Nwachukwu v. Egbuchu (1990) 3 NWLR (Pt. 139) p. 435 at p. 437; (2) Iyaro v. State (1988) 1 NWLR (Pt. 69) p. 256 and (3) Onwunalu v. Uche (2010) 2 NWLR (Pt. 1179) p. 582. Therefore, such findings of the trial court become defective and are liable to be set aside on appeal. See also the cases of: (1) Obadara v. The President, Ibadan West District Grade “B” Customary Court (1964) 1 All NLR p. 331 and (2). Onwunalu v. Uche supra. In the instant matter, the Tribunal’s findings and conclusions were borne out of legally inadmissible documentary evidence and are therefore perverse. This Court has a legally bounding responsibility of setting them aside.
Consequently, this appeal is meritorious; the judgment of the Tribunal being appealed is set aside. The petition of the petitioner who is the 1st Respondent herein is dismissed. The election and return of the 1st Appellant is affirmed.
I equally agree that the cross appeal is without merit and dismissed accordingly. I also assess the costs of this appeal and cross-appeal at the sum of Ten Thousand Naira in favour of the Appellants/Cross-Respondents and against the 1st Respondent/Cross Appellant.
ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have before now read the lead judgment of my learned brother, NWOSU-IHEME, JCA. I agree that this appeal be allowed and the Cross Appeal be dismissed. I abide by the order for costs as assessed by my learned brother in the lead judgment.
Appearances
CHIEF BOLAJI AYORINDE SAN, with CHIEF DURO ADEYELE SAN, ALEX OWOEYE and LAWRENCE IMOLODEFor Appellant
AND
DR. O. F. AYENI with him P. OMOLUABI & S. C. UDU for the 1st Respondent/Cross-Appellant
AMEH IGBOCHI for the 2nd-4th RespondentsFor Respondent
