OLUWAROTIMI AKEREDOLU, SAN & ANOR v. RAHMAN O. MIMIKO & ORS.
(2013)LCN/6119(CA)
In The Court of Appeal of Nigeria
On Friday, the 19th day of April, 2013
CA/EPT/AK/GOV/05/13
RATIO
“”The facts as borne by the record show that the appellants’ platform for bringing in a major evidence such as the demonstration of software by electronic means are as backed up by their foregoing averments which are contained in their reply brief. Thus, the guestion posed by the learned senior counsel of the 1st respondent and which we find material to ask here is: can the appellant rely on their reply brief to bring in a major evidence of this nature? I see the case of Orji vs. Ugochukwu (2009) 14 NWLR (Pt.1161) 207, 296 paragraphs D, E and F which is a decision of this court to be instructive on the issue. Therein Ibiyeye, JCA had this to say regarding evidence of a tape recorder and a witness not previously listed in the main petition: “Both the PW5 and Exhibit HS were not listed or frontloaded as a witness and the document respectively. They were instead brought in particularly in petition No. ABS/GOV/EPT/9/07 in the reply of the petitioner/Respondents to reply of the 1st and 2nd respondents/1st and 2nd Appellants. This approach to start with is utterly irregular and is an affront to paragraph 1(i) , (b) and (c) above as petitioner cannot at reply stage be allowed to bring in, without leave for an amendment sought and got from the court any substantial facts which ought to have been raised in the petition itself. It is unfair and prejudicial for the petitioners/Respondent to bring in PW5 and through him (PW5) Exhibit HS into petition No ABS/GOV/EPT/9/07 at the petitioner reply stage being a time when respondents/appellants could no longer reply to their substantial allegation and far-reaching evidence.” The foregoing decision makes it clear that the appellants cannot use the platform of their reply brief to bring in the fact that they would need to carry out a demonstration using electronic mechanism to show irregularities in the voters Registers used in the General Election in Ondo State in 2012 and the Gubernatorial Election of 2012. Such facts ought to be pleaded in the main petition of the Appellants so as to give the respondents the opportunity to react to those facts and also remove the element of surprise which the law abhors.” Per JOMBO-OFO, J.C.A.
“It is specifically provided in section 84 of the Evidence Act as it relates to admissibility of statement in document produced by computers that: 84 (1) In any proceeding a statement contained in a document produced by a computer shall be admissible as evidence of any fact stated in it of which direct oral evidence will be admissible, if it is shown that the conditions in subsection (2) of this section are satisfied in relation to the statement and computer in question. The conditions referred to in subsection (1) of this section are:- (a)That the document containing the statement was produced by the computer during a period over which the computer was used regularly to store or process information for purposes of any activities regularly carried on over that period whether for profit or not, or by any individual; (b) That over that period there was regularly supplied to the computer in the ordinary course of those activities information of the kind contained in the statement or of the kind from which the information so contained is derived; (c) That throughout the material part of that period the computer was operating properly or, if not, that in any respect in which it was not operating properly or was out of operation during that part of that period was not such as to affect the production of the document or the accuracy of its contents; and (d)That the information contained in the statement is reproduced or is derived from information supplied to the computer in the ordinary course of those activities. Going by the foregoing provision it is discernible that the appellants who were desirous of demonstrating electronically the content of Exhibits P50A and P50B failed to lay the necessary foundation regarding the condition of the electronic gadget or computer they were going to use. To the extent that those conditions as spelt out in section 84 supra were unfulfilled the demonstration ought not be allowed. See the cases of: (i) Maduekwe vs. Okoroafor (1992) 9 NWLR (Pt.263) 69 (ii) INEC vs. AC (2009) 2 NWLR (Pt.1126) 524 at 595.” Per JOMBO-OFO, J.C.A.
JUSTICES
TIJANI ABDULLAHI Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR B. GUMEL Justice of The Court of Appeal of Nigeria
MASSOUD A. OREDOLA Justice of The Court of Appeal of Nigeria
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
Between
1. OLUWAROTIMI AKEREDOLU, SAN
2. ACTION CONGRESS OF NIGERIA (ACN) Appellant(s)
AND
1. RAHMAN O. MIMIKO
2. LABOUR PARTY (LP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
CORDELIA IFEOMA JOMBO-OFO, J.C.A. (Delivering the Leading Judgment): This is an interlocutory appeal against the ruling of the Governorship Election Tribunal sitting in Akure, Ondo State, delivered 25th February, 2013. The tribunal had in the ruling dismissed an oral application by the petitioners (herein the appellants) to demonstrate through the PW35, one Sunday Adekunle the content of Exhibits P50(A) and P50(B) using electronic gadgets. The tribunal in its ruling refused the application.
The brief and relevant facts leading to the appeal are that sequel to the Governorship election in Ondo State conducted by the 3rd respondent on 20th October, 2012, the 1st respondent and eleven other candidates took part in the said election as candidates of their parties. The 1st respondent was declared the winner of the election and accordingly returned as the Governor of Ondo State. The appellants were dissatisfied with the return of the 1st respondent and so challenged his declaration and return before the Governorship Election Petition Tribunal sitting in Akure, in Petition No. EPT/OD/GOV/02/12.
In the course of the proceedings at the tribunal, the appellants had sought and obtained the order of the tribunal for their experts to testify and tender reports of analysis conducted by them. The appellants called PW35 who was alleged to have conducted physical inspection with his team on electoral materials and particularly the 2011 and 2012 Voters Registers. While leading the witness in evidence, the learned senior counsel applied that the appellants be allowed to demonstrate through the said PW35 the electronic voters registers for 2011 and 2012 already in evidence as Exhibits P50(A) and P50(B). The said exhibits were earlier produced before the tribunal by the 3rd respondent as a result of Subpoena Duces Testificondum issued on her.
Learned counsel for the respondents each opposed the application. The tribunal in its ruling agreed with the respondents and accordingly refused the application. The appellants not satisfied with the ruling has appealed to this court vide a Notice of Appeal filed 7th March, 2013 containing a sole ground of appeal. See pages 450-452 of the record.
Parties duly filed and served their briefs of argument. In the appellants’ brief of argument dated 26th March, 2013, filed 27th March, 2013 and prepared by Chief Akin Olujinmi, SAN and 3 other counsel, a sole issue was distilled for the determination of the appeal. The issue reads:
“Whether having regards to the pleadings of the parties, the tribunal was right in law in disallowing the petitioners to demonstrate the electronic voters registers for 2011 and 2012 which form major aspects of the appellants’ case.”
In the 1st respondent’s brief dated and filed 2nd April, 2013 and settled by Chief Wole Olanipekun, SAN, and 11 other counsel, they formulated one issue for the hearing and resolution of this appeal and it reads:
“Whether having regard to the appellants’ pleadings, the terms of the lower tribunal’s order of 13th December, 2012 vis-a-vis the provisions of the Evidence Act and the Electoral Act in relation to procedure for leading evidence in chief, the lower tribunal was not right in disallowing PW35 from “demonstrating” the contents of P50 (A) and P50 (B) through electronic gadgets when the witness neither made nor tendered the said Exhibits in evidence at the trial.”
The 2nd respondent in its brief dated 1st April, 2013, filed 2nd April, 2013 and settled by Yusuf O. Ali, SAN, and 8 other counsel formulated the following lone issue for determination:
“Whether the tribunal was not right by (sic) in refusing to grant the application of the Appellants to demonstrate the purported irregularities in the 2011 and 2012 Voters Registers by the use of electronic gadgets having regard to the rules or procedures governing Election petition proceedings and peculiar circumstances of the case?”
In like vein the 3rd respondent, in its brief of argument dated and filed 2nd April, 2013, and settled by Chief Adegboyega Awomolo, SAN and 17 other counsel, came up with two issues for determination of the appeal. The issues are:
“1. Whether the right of the appellants’ to fair hearing was violated by the refusal to allow them to demonstrate Exhibits P50A and P50B, the same having been demonstrated in Exhibits p55-p57.
2.Whether the grant of the appellants’ application would not have overreached and prejudiced the respondents and thereby violated their right to fair hearing.”
The appeal was heard on 18th April, 2013 in the course of which the leading counsel for each of the parties adopted their brief as the case maybe. Be that as it may, the leading counsel for the 3rd respondent on adopting their brief applied to the court to discountenance the first issue in their brief thus retaining only one issue i.e. the second issue for determination of the appeal. The first issue is accordingly struck out having been withdrawn.
I have had a thorough look at the various issues formulated by the various counsel to the parties and I think that they are to a very large extent similar. It will therefore amount to repetition dealing with them one after the other. Being that the appellants are the aggrieved parties, coupled with the authority of P.S.H.S.M.B. vs. Goshwe (2013) 2 NWLR (Pt. 1338) 383, 399 paras. A-E, I have considered it necessary to adopt the lone issue formulated by them. It follows that the sole issue before me for determination is:
Whether having regard to the pleadings of the parties, the tribunal was right in law in disallowing the petitioners to demonstrate the electronic voters registers for 2011 and 2012 which form major aspects of the appellants’ case.
In canvassing arguments on the issue, Chief Akin Olujinmi, SAN learned counsel for the appellants submitted that it is settled by a long line of decided cases that it is the duty of a party relying on documents as part of his case to specifically relate each of such documents to the part of his case in respect of which the document is being tendered. This is because the court cannot assume the duty of relating each of the documents or bundles of documents tendered in evidence to specific aspects of the case for the party. He referred to the cases of:
ANPP vs. Usman (2008) 12 NWLR (Pt. 1100) 1 at 65
Terab vs. Lawan (1992) 3 NWLR (Pt.230) 569 at 590
Iniama vs. Akpabio (2008) 17 NWIR (Pt.1116) 225 at 299
Audu vs. INEC (No.2) (2010) 13 NWLR (Pt.1212) 456 at 520.
Learned senior counsel submitted that it was in realization of this duty on the petitioners that they applied to demonstrate the electronic registers for 2011 and 2012 but the tribunal shut them out by relying on its application which it granted on 19th February, 2013 and as contained on page 422 of the record. Counsel argued that when he submitted to the tribunal that it should not do cloistered justice, he meant exactly what this court said in ANPP VS. Usman (supra) at page 65 on the point and on the authority of which they the appellants wanted to relate the two electronic voters registers Exhibits P50 (A) and P50 (B) to the aspects of their case for which they were tendered.
In further submission learned senior counsel stated that it is a settled rule of pleading that evidence by which pleaded facts are to be proved need not be pleaded. Thus they pleaded facts concerning the voters registers. He argued that therefore it is not required of the petitioners to plead that PW35 would be required to demonstrate by electronic gadgets the irregularities alleged in the voters registers used in the disputed election. In the appellants’ Reply to the 3rd Respondent’s Reply at paragraphs 11, 12, 13 and 14 thereof quoted under paragraph 2.2 of the appellants’ brief the appellants had disclosed facts of multiple registration of voters. That they would require PW35 to use electronic gadget to demonstrate the irregularities in the registers would be the evidence which need not be pleaded. Counsel relied on Monier Construction Co. Ltd. vs. Azubuike (1990) 3 NWLR (Pt. 136) 74 at 85 E-G; and Odunsi vs. Bamgbola (1995) 1 NWIR (Pt. 374) 641 at 687. Further in his submission the learned senior counsel referred to section 258 (1) (b), (c) and (d) of the Evidence Act, in submitting that the electronic registers (Exhibits 50(A) and 50(B) are documents to prove the irregularities alleged in the paragraphs of the appellants’ Reply quoted under paragraphs 2.2 and 2.4 of their brief of arguments. Apart from the pleaded facts the appellants went further under paragraph 2.4 of their reply brief to plead as follows:
“5. Further to the above, the petitioners will demonstrate the irregularities in the voters Registers used during the Gubernatorial Elections of the 2012 and those used for the General Election in Ondo State in 2011. The 2012 register comprise of unjustified multiple registration of voters and thus aided double and multiple voting during the said election.”
See also page 195 of the records.
Having pleaded irregularities in the 2011 and 2012 Voters Registers, it was that demonstration that the tribunal disallowed. According to counsel this tribunal’s decision which has prevented the appellants from putting their case as pleaded to the tribunal has denied them fair hearing as guaranteed them by section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) henceforth to be referred to as the Constitution. He referred to Adigun & Ors. vs. A-G Oyo State & Ors. (1987) All NLR. 111 at 142 wherein it was held that:
“Denial of fair hearing is denial of justice and it is a prejudice to any man to be denied justice.”
Learned counsel concluded that in the light of the issues joined on the pleadings and the settled position of the law on pleadings that none of the respondents could have been prejudiced by a demonstration of the electronic registers, Exhibits P50 (A) and P50 (B). That the application earlier granted by the tribunal allowing the appellants to call PW35 to tender his report on examination and analysis of election materials had nothing to do with the application to permit the appellants to demonstrate the irregularities in the voters registers, Exhibits P50 (A) and P50 (B). The application to call PW35 became necessary because his report on examination and analysis of election materials could not be frontloaded at the time the petition was filed because the same was not ready. If the report had been available and frontloaded it would not have been necessary to apply for leave to file the report out of time as appellants did in the application which the tribunal referred to in the ruling under appeal. On the premises of all of their submission above, the learned counsel has urged us to uphold this issue (A) raised by the ground of appeal and allow the appeal. He further urged us on allowing the appeal to also grant the appellants’ application to demonstrate the electronic voters registers for 2011 and 2012, Exhibits P50 (A) and P50(B) and direct that the demonstration be allowed by the tribunal expeditiously.
In opposing this appeal and their submission as it relates to the issue above, Chief Wole Olanipekun, SAN learned senior counsel for the 1st respondent pointed out that the documents sought to be demonstrated through electronic gadgets i.e. Exhibits P50 (A) and P50 (B) were neither made nor tendered by the witness, PW35. Learned senior counsel also noted that PW35 had filed a detailed statement on oath and prepared a report of analysis of 2011 and 2012 voters register and tendered same as Exhibit P55-P57 before the application to demonstrate documents not made by the witness was made. He opined that the fact that the PW35 was being led in evidence-in-chief when the attempt was made to introduce the electronic gadgets, computer and camera to display some information on the wall of the tribunal was certainly not going to find support in the provisions of paragraph 41(3) of 1st Schedule to the Electoral Act, 2010 and sections 214, 215 and 221 of the Evidence Act. Learned senior counsel went on in paragraph 4.3 of their brief of argument to set out the Proceedings/Ruling preceding the application with the aim of showing that Exhibit P50 A and P50 B were not made or tendered by the PW35. See page 412 lines 10-11 of the records. Counsel referred to the case of Buhari vs. INEC (2008) 19 NWLR (Pt.1120) 246 at 391 (per Niki Tobi JSC., where he reiterated the legal principle and limitations imposed on the competence of a witness who did not make or tender a document. On the strength of the foregoing authority the learned counsel argued that PW35 not being the maker nor the witness who tendered Exhibits PW50 A and PW50 B cannot demonstrate or comment on them.
Further more in his submission the learned SAN recapped the genesis of the appellants’ application to bring in additional statement on oath which can be found in the order for inspection of the lower tribunal dated 13th December, 2012 and contained at pages 294-299 and 413 of the record. He argued that the tribunal’s ruling was specifically in respect of CTC of Forms and materials used at the Governorship Election of 20th October, 2012. Thus, that the 2011 Electronic/soft copy of voters register was not subject of the leave granted on 19th December, 2012 to file further statement. The Electronic copy of the register being official document must be certified to be admissible. For this submission counsel relied on sections 104 105, 89 (e) and (f) and 90 (1)(c) of Evidence Act as well as INEC vs. AC (2009) 2 NWLR (Pt. 1126) 524, 627 para A-F; Ezeamuna vs. Onyeama (2011) 13 NWLR (Pt.1263) 36, 74 paras A, B and C.
Learned senior counsel also submitted that by the agreement of all counsel to the parties’ objection to admissibility of documents was reserved till final address to save time. In trying to justify that what the appellants pleaded and which they promised to demonstrate are basically the paper/copy of the voters’ register used for 2011 and 2012 elections, learned senior counsel argued that it is from the hard manual copies of voters register that incidence of double and multiple voting can be proved and demonstrated. Thus he referred to paragraph 5 of the appellants’ reply to the Respondent’s Reply supra to submit that therein no reference was made to electronic voters register. Reference to voters register that was used in 2011 and that used in 2012 on election dates cannot according to the learned silk be the basis of bringing in Electronic Register which was not used on election date. The senior counsel referred to INEC VS. AC (supra), at page 635 para. G which has settled that evidence not in consonance with pleading will not be allowed. See also (i) Goyol vs. INEC (No. 2) (2012) 11 NWLR (Pt.1311) 218, 230 para G-H; and (ii) Kode vs. Yussuf (2001) 4 NWLR (Pt.703) 392, 416 para F-G.
Counsel saw the appellants’ oral application to demonstrate Exhibits P50 A and P50 B as one not made in good faith and was overreaching to respondents and that it came with the element of surprise.
See Orji vs. Ugochukwu (2009) 14 NWLR (Pt. 1167) 207 on the irregularity and inappropriateness of using averments in a reply to lead substantial evidence.
While relying on Paragraph 18 of the First Schedule to the Electoral Act, 2010 (as amended) and the case of Nwankwo vs. Yar’adua (2010) 12 NWLR (Pt.1209) 518 the learned senior counsel submitted that the major application to demonstrate using electronic gadgets, coming as it were, outside the pre-hearing session amounted to a call on the lower tribunal to allow oral and electronic evidence based on computer product. It also calls for the exercise of judicial discretion. It therefore lies on the appellants or applicant as the case maybe to place before the court or tribunal materials necessary to grant the application. See General Aviation Services Ltd. vs. Thahal (2004) 10 NWLR 880 (Pt.880) 50, 74, para A-C; Dangote vs. C.S.C. Plateau State (2001) 9 NWLR (Pt.717) 13.
It is the further submission of learned senior counsel that the attempt at demonstrating P50A and P50 B being computer generated documents runs contrary to the spirit and letters of the provisions of section 84 particularly subsection (2) (c) and (4) of the Evidence Act in that there is no statement and there was no certificate as required by it. See also the cases of:
1. Maduehkwe vs. Okafor (1992) 9 NWLR (Pt.263) 69;
2. INEC vs. AC (supra) 524 at 595
Premised on the provisions of section 84 supra, counsel made it clear that in so far as the PW 35 was desirous of bringing in matters derived from or through gadget or computer to the attention of the tribunal the necessary foundation or condition of the electronic equipment/gadget or computer must be met. Such instrument as “Subpoena Duces Testificandum” is available to the petitioners/appellants against the INEC. Counsel reiterated that the PW35 was neither the maker nor the witness that tendered Exhibits PW50 A and PW50 B. There was the element of surprise in the mode and method adopted by the appellants when they stormed the tribunal with electronic gadgets to demonstrate computer generated exhibits without prior notice to the respondents. A prior notice would have enabled the respondent to get his own expert who would advise the said respondent on the accuracy or otherwise of the computer gadgets the appellants proposed to use. It thus amounted to a gross violation of section 36 of the Constitution and the right to fair hearing for the appellants to spring a surprise on the tribunal and the respondent.
Now on the cases of ANPP vs. Usman (supra); Terab vs. Lawan (supra); Iniama vs. Akpabio (supra); and Audu vs. INEC (No. 2) (supra) relied upon by the appellants, the learned counsel for the 1st respondent stated that they are distinguishable from the facts of this case. Learned senior counsel was quick to draw the attention of the court to its warning on the need to be wary of witnesses hired by a party to election litigation as expert witness. The said warning is contained in the decision of this court in Fayemi vs. Oni (2009) 7 NWLR (Pt. 1140) 223 at 276-277. Counsel also pointed out that the evidence of the PW3 and what he sought to demonstrate was a mere statistical analysis and therefore does not come within the provision of section 68 of the Evidence Act. He referred again to ANPP vs. Usman supra at page 67-68 paragraphs H-E where this court interpreted section 57 of the old Evidence Act which is in pari materia with the current 2011 Evidence Act.
Learned senior counsel concluded his submission by saying that it will be inappropriate to allow the witness PW 35 to lecture, explain or demonstrate what is contained in Exhibit P50 (A) and P50 (B) which he neither made nor tendered.
Premised on his submission the learned counsel for the 1st respondent urged the court to dismiss this appeal and to affirm the decision of the lower tribunal. In reply by the appellants to the 1st respondent’s reply brief the learned senior counsel observed that the ground upon which the tribunal disallowed the demonstration and as can be seen at page 422, last four lines and this is the only ground that the respondent can lawfully defend. He argued that a respondent who wishes to retain the judgment in his favour and who has not cross-appealed against the judgment or ruling has a duty to comply with Order 9 Rules 1, 2, 3 and 4 by giving the appropriate notice. The notice may be to contend that the decision of the lower court should be varied or that it be affirmed on grounds other than those relied upon by the court. The period to give the notice in an interlocutory appeal pursuant to Order 9 Rule 4 is 15 days after the service of the notice of appeal on the respondent and failure to give such notice is fatal to any argument outside the grounds of appeal. Counsel submitted that in view of this that the 1st respondent’s arguments at paragraphs 2.3, 2.4, 2.5, 2.8, 2.9, 2.10, 4.2, 4.4 and 4.5 of his brief are tantamount to asking this court to affirm the decision of the tribunal on grounds other than that relied upon by the tribunal. He urged that not having given the necessary notice to contend the decision of the tribunal other than those relied upon by the tribunal those arguments should be disregarded by the court. He relied on the authorities of:
(1) AERMACCHI VS. A. I. C. LTD (1986) 2 NWLR (PT.23) 443 AT 453 PARA. F-G;
(2) ODU VS. FAWEHINMI (2005) 15 NWLR (PT.949) 578 AT 604 – 605.
Also to go for flying at a tangent from the ground relied upon by the tribunal in disallowing the appellants from carrying out their demonstration are paragraphs 4.6, 4.7, 4.8, 4.9, 4.10, 4,11, 4.12, 4.13, 4.14, 4.16, 4.17, 4.19, 4.20, 4.21, 4.22, 4.23 and 4.24 of the respondent’s brief of argument. Learned senior counsel once more urged the court to allow the appeal.
Coming to the 2nd respondent on the issue, learned counsel on its behalf brought out what he termed salient points not in dispute. Consequently he raised the question “whether Exhibits P50(A) and P50(B) were documents properly tendered before the tribunal that are capable of being validly used by any party?” To this question learned counsel answered in the negative. His reasoning being that Exhibits P50(A) and P50(B) were produced by INEC in answer to a Subpoeno Duces Testificandum only. According to counsel the marking of the soft copies of the Voters Registers after tendering them from the bar does not make the documents to have any value without calling the maker to speak to them and demonstrate their purport or lead them to demonstrate the alleged irregularities in the 2011 and 2012 voters Registers. It is only the appropriate INEC official that can speak to Exhibits P50(A) and P50(B) being the maker of the document. He placed reliance on HASHIDU VS. GOJE (2006) 2 EPR 789, 834-835 para. C-A.
Learned senior counsel further submitted that Exhibits P50(A) and P50(B) are original documents. Being soft copies of Voters Registers produced and prepared by INEC they are public documents. Relying on the authority of AGAGU v. DAODU (1990) 7 NWLR (Pt.160) 56 only the CTC of a public document can be tendered by anybody even from the bar but not the original. On the premises of this counsel submitted that the exhibits are not admissible. He further referred to the cases of:
(i) MOHAMMED DELE BELGORE VS. ALHAJI ABDULFATAH AHMED (unreported) Appeal N. SC26/2012 delivered on 12th March, 2012 per Tabai JSC at page 47.
(ii) FLASH FIXED ODDS LTD VS. AKATUGBA (2001) 9 NWLR (Pt.717) 46, 63
(iii) GREGORY OKONKWO VS. THE STATE (1998) 8 NWLR (Pt.561) 210, 258.
Also referred to is the provision of paragraph 4(1) and (3) of the Practice Direction which was interpreted by this court in the case of ORAKWE VS. CHUKWUKA (2012) NWLR (Pt.1280) 87, 201 paras. D-E.
On the issue of tying documents to pleadings relied upon by the appellants, the learned senior counsel for the 2nd respondent submitted that that is quite different from demonstration by the use of electronic gadgets like the appellants tried to do. Also that the application sought and obtained to call and tender the report of physical inspection did not contain demonstration by the PW35 or any other witness whatsoever; and no reference was made to any demonstration using soft copies of the 2011 and 2012 Voters Registers (Exhibits P50A and P50B) by gadget in his witness’ deposition. Learned senior counsel concluded his submission by saying that the provisions of paragraph 41 of the First Schedule to the Electoral Act never included demonstration using gadget and such cannot be granted as a matter of course. He finally urged the court to dismiss the appeal.
The salient points raised by the learned senior counsel for the 3rd respondent regarding the issue under review include their argument that an holistic consideration of the fact surrounding the appellants’ application for demonstration of Exhibits P50A and P50B was nothing but a sheer abuse of the administration of justice. Relevant among the reasons for the submission, is that Exhibits P55-P57 was a “demonstration” of the PW35’s observations and analysis of the 2011 and 2012 Voters Registers; and that in an election matter time is of the essence.
Learned senior counsel concluded by saying that allowing the appellants to demonstrate electronically what had been extensively demonstrated by analysis in over 20 volumes would have amounted to allowing them a second bite at the cherry. He remarked that justice is not a one way traffic but a three way traffic; not only to the appellants but also to the respondents as well as to the court. The appellants’ right to fair trial was not breached having been given ample opportunity to bring all their complaints and demonstrate same before the tribunal. And to grant the appellants application at the time it was brought would not only lead to the breach of the respondents’ rights to fair trial but also prejudice their case.
The reply of the appellants to the reply of the 3rd respondent on the issue for resolution appears to be the same in substantial material respect to their replies above. I shall therefore not bother recapping them again here.
RESOLUTION OF THE ISSUE
Whether having regard to the pleadings of the parties, the tribunal was right in law in disallowing the petitioners to demonstrate the electronic voters registers for 2011 and 2012 which form major aspects of the appellants’ case.
I have considered the entire arguments of the appellants and that of each of the respondents, as well as the authorities relied on by them and I would like to recall that the immediate build up to this appeal was the refusal by the trial tribunal to allow the appellants’ counsel while leading their PW35 in evidence to demonstrate through him the electronic voters registers for 2011 and 2012 already admitted in evidence and marked Exhibits P50A and P50B respectively.
Now it is trite that a party cannot be allowed to lead evidence in respect of facts not pleaded. The major averments of the appellants which touch on their application to demonstrate the electronic voters registers are as contained in paragraph 5 of the appellants’ reply brief to the 1st respondent’s brief and paragraphs 11, 12, 13 and 14 of the appellants’ reply to the 3rd respondent’s reply already reproduced above. However of particular importance is paragraph 5 of the appellants’ reply to the 1st respondent’s reply which I need to reproduce once more. It reads:
“5. Further to the above, the petitioners will demonstrate the irregularities in the voters registered used during the Gubernatorial elections of the 2012 and those used for the general election in Ondo State in 2011. The 2012 register comprise of unjustified multiple registration of voters and thus aided double and multiple registration of voters and thus aided double and multiple voting during the election.”
It is pertinent to point out that the appellants, given the averment above were desirous to “demonstrate the irregularities in the voters registers” used in the 2011 and 2012 for the respective elections. Sequel to the meeting held between the 3rd respondent and the representatives of the political parties on or about 20th September, 2012 both hard and soft copies of the voters Register were given to representatives of the parties. This is to say that one month prior to the election in issue that the appellants were already in possession of the voters Register both hard and soft copies. These electronic voters registers were in the course of hearing the petition admitted in evidence as Exhibits P50A and P50B vide Subpoeno Duces Tecum.
The facts as borne by the record show that the appellants’ platform for bringing in a major evidence such as the demonstration of software by electronic means are as backed up by their foregoing averments which are contained in their reply brief. Thus, the guestion posed by the learned senior counsel of the 1st respondent and which we find material to ask here is: can the appellant rely on their reply brief to bring in a major evidence of this nature?
I see the case of Orji vs. Ugochukwu (2009) 14 NWLR (Pt.1161) 207, 296 paragraphs D, E and F which is a decision of this court to be instructive on the issue. Therein Ibiyeye, JCA had this to say regarding evidence of a tape recorder and a witness not previously listed in the main petition:
“Both the PW5 and Exhibit HS were not listed or frontloaded as a witness and the document respectively. They were instead brought in particularly in petition No. ABS/GOV/EPT/9/07 in the reply of the petitioner/Respondents to reply of the 1st and 2nd respondents/1st and 2nd Appellants. This approach to start with is utterly irregular and is an affront to paragraph 1(i) (a), (b) and (c) above as petitioner cannot at reply stage be allowed to bring in, without leave for an amendment sought and got from the court any substantial facts which ought to have been raised in the petition itself. It is unfair and prejudicial for the petitioners/Respondent to bring in PW5 and through him (PW5) Exhibit HS into petition No ABS/GOV/EPT/9/07 at the petitioner reply stage being a time when respondents/appellants could no longer reply to their substantial allegation and far-reaching evidence.”
The foregoing decision makes it clear that the appellants cannot use the platform of their reply brief to bring in the fact that they would need to carry out a demonstration using electronic mechanism to show irregularities in the voters Registers used in the General Election in Ondo State in 2012 and the Gubernatorial Election of 2012. Such facts ought to be pleaded in the main petition of the Appellants so as to give the respondents the opportunity to react to those facts and also remove the element of surprise which the law abhors.
It is on record that the appellants applied to the lower tribunal for an order for inspection of documents used for the October, 2012 Governorship Election. The trial tribunal granted the application and in its order dated the 13th day of December 2012, the tribunal while granting the application confined inspection to the documents used during the election. Specifically the order of the tribunal reads inter alia:
“4 That the 3rd Respondent by itself, its officers, privies and/or agents are hereby ordered to permit the Petitioners acting through their agents and counsel to inspect, make copies and receive from the 3rd Respondent certified copies and/or counter-part of all INEC documents, forms and other processes specifically named in the schedule to the motion paper used at the Governorship Election in Ondo State on the 20th October, 2012 in custody of the 3rd Respondent for use to maintain the election petition No.EPT/OD/GOV/02/2012.”
See particularly pages 297 of the record.
Furthermore the appellants by a motion at the lower tribunal sought leave of it to file additional statements on oath which said statements included the statement on oath of PW35. This application was to enable the appellants file oaths/depositions of persons who carried out inspection of election materials pursuant to the foregoing order of the tribunal made 13th December, 2012. It is clear from the record that it was in pursuance of this order that the PW35 had carried out analysis and comparison of the 2011 and 2012 Electronic Voters Registers and came up with a report which was admitted in evidence. It was therefore a surprise to the respondents when the appellants subsequently came up with an oral application to be allowed to demonstrate using electronic gadgets the electronic voters register already admitted in evidence as Exhibits P50A and P50B. The said Exhibits i.e. P50A and P50B were neither made nor tendered in evidence through the PW35. Moreover, it was in the course of being led in evidence-chief that the oral application to have him carry out the demonstration was made. Pursuant to the provision of Paragraph 41(3) of the First Schedule to the Electoral Act, 2010 there shall be no oral examination of a witness during his evidence-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. As PW35 was neither the maker of Exhibits P50A and P50B nor were the said exhibits referred to in his deposition, it would be wrong to allow him lead evidence on them i.e. by demonstration with electronic gadgets and or computer as sought by the appellants. In Buhari vs. INEC (2008) 19 NWLR (Pt.1120) 246 at 391-392 (per Tobi JSC.) the Supreme Court reiterated the legal principle and limitations against the competence of a witness who did not make or tender a document. It said:
“…It is that the witnesses were not the makers of the documents inspected and have no legal competence to comment on them…… Such a person is adjudged in the eye of the law as ignorant of the contents of the document.”
Since PW35 was neither the maker of Exhibits P50A and P50B nor were they tendered by him or through him he is on the strength of the foregoing authority adjudged by law to be ignorant of the content and cannot therefore comment on them by way of demonstration nor can he answer questions arising from them. To my mind since one cannot give what he does not have; likewise a witness who did not make a document and as such ignorant of its content cannot educate others on it.
Furthermore Exhibits P50A and P50B being soft copies of the voters Register are subject to the provisions of section 84 of the Evidence Act, 2011 being that they are computer generated documents. The devices to be used in the demonstration are computers within the meaning of section 258 (1) of the Evidence Act supra and it defines computer to mean “any device for storing and processing information and any reference to information being derived from other information is reference to its being derived from it by calculation, comparison or any other process.”
Now on reading through the statement on oath of the PW35 I observed that there was nothing in it to the effect that the computer used to generate the exhibits and or to be used to carry out the demonstration before the tribunal has been used “regularly to store or process information for the purpose of any activities regularly carried out over that period.”
It is specifically provided in section 84 of the Evidence Act as it relates to admissibility of statement in document produced by computers that:
84 (1) In any proceeding a statement contained in a document produced by a computer shall be admissible as evidence of any fact stated in it of which direct oral evidence will be admissible, if it is shown that the conditions in subsection (2) of this section are satisfied in relation to the statement and computer in question.
The conditions referred to in subsection (1) of this section are:-
(a)That the document containing the statement was produced by the computer during a period over which the computer was used regularly to store or process information for purposes of any activities regularly carried on over that period whether for profit or not, or by any individual;
(b) That over that period there was regularly supplied to the computer in the ordinary course of those activities information of the kind contained in the statement or of the kind from which the information so contained is derived;
(c) That throughout the material part of that period the computer was operating properly or, if not, that in any respect in which it was not operating properly or was out of operation during that part of that period was not such as to affect the production of the document or the accuracy of its contents; and
(d)That the information contained in the statement is reproduced or is derived from information supplied to the computer in the ordinary course of those activities.
Going by the foregoing provision it is discernible that the appellants who were desirous of demonstrating electronically the content of Exhibits P50A and P50B failed to lay the necessary foundation regarding the condition of the electronic gadget or computer they were going to use. To the extent that those conditions as spelt out in section 84 supra were unfulfilled the demonstration ought not be allowed. See the cases of:
(i) Maduekwe vs. Okoroafor (1992) 9 NWLR (Pt.263) 69
(ii) INEC vs. AC (2009) 2 NWLR (Pt.1126) 524 at 595.
As rightly submitted by the learned senior counsel for the 1st respondent, a prior notice to the respondents regarding the proposed demonstration of the soft copies of the voters register would have enabled the said respondents to get their own expert to observe and in turn advise them on the accuracy or otherwise of the computer gadgets the appellants proposed to use. It is no secret that such electronic devices as computers are subject to being hacked and or manipulated.
Thus the warning by this court on the need of the courts to be wary of witnesses hired as experts by a party to election litigation. The warning which is contained in the case of Fayemi vs. Oni (2009) 7 NWLR (Pt.1140) 223 at 276-277 reads:
“The court must be wary of admitting a report prepared by an expert, not at the instance of the court but at the behest of any of the parties to the disputes. Such a report should be taken with a pinch of salt.”
To my mind, since Exhibits (P50 and P50B) are already before the tribunal whether rightly or wrongly, the tribunal should be left alone to take a decision on it one way or the other. Who knows, the envisaged demonstration may have ended up creating confusion on the mind of the said tribunal rather than educating it.
Without much ado I am indeed of the firm view that by the nature of election cases, statements in the nature of averments in replies made to respondents’ replies to petitions ought not be seen as part of the petitioners pleadings in the petition itself. This is because of its capacity to shut out, prejudice, surprise and even deny the respondent of the opportunity to join issues with the petitioner. Such averments in petitioners reply to the respondent’s reply must be treated with caution in order not to breach the constitutionally guaranteed right to fair hearing which is also available to the respondent pursuant to section 36 (5) of the 1999 Constitution of the Federal Republic of Nigeria as amended. I really have no hesitation in holding that if the demonstration applied for by the appellants was allowed by the tribunal, the respondents would have been overreached and prejudiced thus violating their right to fair hearing.
All I have reasoned above in effect regarding the sole issue for determination is that having regard to the pleadings of the parties, the tribunal was right in disallowing the petitioners to demonstrate the electronic voters registers for 2011 and 2012 despite the fact that they form major aspects of the appellants’ case. The issue is therefore resolved against the appellants.
The appeal is hereby dismissed for lack of merit.
I make no order as to costs.
TIJJANI ABDULAHI, J.C.A.: I agree
ALI ABUBAKAR B. GUMEL, J.C.A.: I agree
MASSOUD A. OREDOLA, J.C.A.: I agree
UCHECHUKWU ONYEMENAM, J.C.A.: I agree
Appearances
Chief Akin Olujinmi, CON, SAN.; Wole Aina, Esq.; S. T. Babafemi (Mrs.); Adekola Olawoye, Esq.; Oluwole O. Ajisafe, Esq.; Victor Olatoyegun, Esq.; Charles Titiloye, Esq.; Funso Aragbada, Esq.; Bola Alabi, Esq.; Bisi Ayeni, Esq.; Bode Famakin Esq.; Aregbesola D. Ajibola, (Miss); S. Olubola, Esq.; Peter Aigbe, Esq.; Onome P. Omoru (Miss); Blessing Ebofereme (Miss); Abdulrazak Adeoye, Esq.; and Abiodun Olaide, Esq.For Appellant
AND
Ricky Tarfa, SAN.; with Kunle Ijalana, Esq.; Abimbola Adeleye-George, Esq.; Duduyemi Ajewole, Esq.; and Akeem olaniyan for the 1st respondent.
Prof. W. Egbewole; R. O. Balogun, Esq.; and A. O. Abdulkadir for the 2nd respondent.
Wale Balogun, Esq.; and C. I. Nwokeocha for the 3rd respondent.For Respondent
