By Essien Ndueso, Supreme Court -Abuja
Faulty foundation and poor presentation of Exhibits have been the greatest undoing of the All Progressives Congress (APC) Governorship candidate in Akwa Ibom, Mr Nsima Ekere, whose appeal at the Supreme Court is up for hearing this Wednesday.
Faced with a rather bad case, his deputy Governorship candidate, Amadu Attai confessed before an open court that he did not know if his party had agents in polling units across the state.
A Deputy Governorship candidate! He did not know if his political party appointed agents at the units, the results of which he embarked on his ‘political scientific analysis.’
That is a story for another day. The bone of contention is that Attai, a star witness of the Appellants and all other witnesses could not demonstrate any of the Exhibits in the manner known to law.
This leads us to Grounds 3 and 4 of arguments by the Appellants “Whether the learned Justices of the Court of Appeal were correct when they held that the Exhibits which the Appellants tendered before the Tribunal were not duly demonstrated and were dumped on the Tribunal” Grounds 3 and 4
It is common ground that the exhibits concerned were electoral forms used in the conduct of the election at the Polling Units, Wards and other Collation Centres. They were equally tendered from the bar and accordingly marked.
The 1st Appellant, PW46 who appeared as a star witness, scuttled whatever was left of the hope in the case when during further cross-examination by the 2nd Respondent’s counsel, he stated thus: “My case is for the nullification of the election held on the 9/3/2019 including where I won.”
Mr Nsima Ekere stated that he was abandoning his earlier statements in which he claimed he had won, insisting that he wants election to hold afresh across all parts of the state, citing widespread electoral irregularities and violence.
In arguing on the rulings that their Exhibits were merely dumped at the tribunal, Appellants’ contention is that their witnesses PW1 to PW47 demonstrated the exhibits in the witness box.
They are arguing that the 1st Appellant (PW46) demonstrated in open court when he merely said: “Yes I identified all the CTC, PTI to PT 2331, PTA l to PTA 2275, PTBI to PTB275, PTC I to PTC 28, PTD1, PTE1, PTFI to PTF4, PTG1 to PTG19 and all other documents”
The inquiry at this stage is: When has identification of exhibits transformed into speaking to the documents or demonstrating them in the open Court? In his evidence under cross-examination Mr Nsima Ekere confessed thus,
“Most of the C. T. C identified were not given to our Agents by INEC.
-We have a few copies of the forms given to our Agents.
– I was not in all the 2275 polling units when the results were recorded.
– yes, I am also not the maker of any of the said documents.
I went through all the 2275 voters Register here in Court. I counted all of them and I went through all of them.
I did not count each of the voters register indicating the number of accredited voters shown in the register.
I know that the voters register and the Card Reader are the instruments used in accreditation.
What I heard is that INEC did not electronically transmit the results of the election to their server Everywhere that there was the election processes, there were corrupt practices.
I was not present, but all the Agents reported all the corrupt practices taking place in various centres.
The Agents I refer to are not dead, most of them have testified before the Court.
I was not present when exhibit PTG I to PTG 19 were recorded.
I am not a statistician.
I did not write any of the articles in the Newspaper, I tendered in evidence.
I do not know who wrote the articles in the said Newspapers.
I have not been invited in any other court to testify against any of the corrupt practise against any of the persons mentioned.
My Agents returned few copies of Form EC8A to me.
I am not referring to those few results handed over to my Agents, but the results announced by the INEC was different from the results recorded at the units.
Yes over-voting happens at the polling unit.
At the time I filed the petition the C.T.C. of the documents were not with us,but I had some copies of the documents.
My contention is that the process of the election that took place in Akwa Ibom State, no one should be declared a winner, so that we have fresh elections in all the 31 L.G Areas.”
According to the arguments put forward by the 1st Respondent, The court below said this much on page 13018 of the record of appeal (Vol. 4) as follows:
“What the law requires is that first of all, the maker of the documents must tender it and must testify to its contents. Then, the document must be subjected to the test of veracity and credibility and where it involves mathematical calculations, how the figures were arrived at must be demonstrated in the open court and finally, the correctness of the final figure must also be shown in the open court.
What the Appellants did here was to dump documents on the court by tendering it from the Bar, got a few witnesses to identify or recognize some of the documents and left the Tribunal to figure out the rest in its chambers. ”
So the question is, is it the duty of the court to sort out the various exhibits, the figures and do calculations in chambers to arrive at a figure to be given in judgment particularly in an election petition which is challenging the number of valid votes scored by a candidate declared and returned as the winner of the election?”
The APC and their candidate perhaps have missed the point in what is meant by demonstration in the open court. This process is not achieved where a witness simply touches a bundle of numerous documents with numerous pages.
The frontloading of evidence and tendering documents in bulk from the bar do not alter this requirement which is an element of proof.
Exhibits tendered from the Bar, as done in the instant case, without calling the makers thereof attract no probative value because there was no opportunity given to the Respondents to cross-examine the makers for the purpose of testing its veracity.
The law is well settled that a court is not allowed to embark on an inquisitorial examination of documents outside the court room.
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.
However, the law has clearly averred that when the 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 cross examination on
them. Relying on the supreme court rulings on the matter, the 1st Respondent maintains that, “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 crossed examined on it has not yet been jettisoned by this (Supreme) Court.
“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.”
Beyond the issue of the documents, the monumental allegations of corrupt practices could not be proved by PW62, Clement Ikpatt, a purported ICT Expert who said he was in the situation room of the APC all through the duration of the elections and merely depended on hearsay from people who could not even identify.
The courts below agreed that he had no personal knowledge of the happening in the field (polling units) and
He could not have been in the Situation Room at his party’s office and be at any of the polling units, wards, Local Government Areas and State level on the date of the election. As usual, APC arrogated such a witness with the powers of a star witness, yet his presence made little or no difference as argued by the Respondents as the law only permitted that the makers must speak to the documents in return, “otherwise they will be dumb and dumped documents.”