Final addresses were on Wednesday adopted by parties involved in the House of Representatives election petition case for the Abi/Yakurr Federal Constituency, Cross River State. With this, the tribunal headed by Mr Justice Olukayode Adeniyi has concluded hearing on the petition and has reserved judgement.
Candidate of the Labour Party for the election, Mr Sunday Oka Ifere, generally known as John Ifere, had dragged Dr Alex Egbona to the tribunal, seeking a nullification of the election and a declaration that he was the winner of the election, even though he came a distant third, based on the results that were announced by INEC.
Ifere’s position was that Egbona was not qualified to contest the election, neither did he win the election. According to him, he it was, who was supposed to have been declared winner and not Egbona. He urged the tribunal to either sack Egbona or cancel the election.
Part of his grounds was that Egbona “at the time of the election, did not fulfil the legal requirement under the Electoral Act, 2022 to contest the election. The 2nd Respondent (Egbona)submitted to the 1st Respondent, an unsworn oath in the prescribed Form EC9 (affidavit) to support his application for the said election.
“The 2nd Respondent was not duly elected by a majority of lawful votes cast at the election.The election of the 2nd Respondent is invalid because of corrupt practices and the election did non-comply (sic) with the provisions of the Electoral Act, 2022 in a manner that substantially affected the election result.”
But in his final address as presented by his lead counsel, Mr Essien Andrew, SAN, Egbona poo-pooed Ifere’s submissions, even as he urged the tribunal to trash everything the LP candidate said because they were useless and not in line with the law.
For example, Egbona said contrary to Ifere’s claims, he had submitted a properly sworn oath in the prescribed form EC9(affidavit) to support his application before INEC, for the election.
VICTORY SPEECH BY DR ALEX EGBONA, RETURNING MEMBER-ELECT, ABI/YAKURR FEDERAL CONSTITUENCY
During the tribunal, Egbona had personally appeared before the tribunal to tender the Certified True Copy(CTC) of the form in question. He had also shown legal proof of having properly obtained the CTC from INEC, after payment of the specified fees.
In the address, Egbona had drawn the attention of the tribunal to the same affidavit which an acclaimed staff of INEC tendered, but which was not obtained and tendered in line with the provisions of the law, and therefore urged the tribunal to throw the document away.
He wrote: “The directive of this Honourable Tribunal in its Pre-hearing Report was that all objections to the admissibility of any document are to be argued by the parties in their Final Written Address. In line with that directive, we wish to argue anon our objection to the admissibility of Exhibit P12, tendered by the Petitioners through their subpoena witness, Mrs Amina Umaru (PW7).
“According to PW7, Exhibit P12 is the Form EC9 which was submitted to INEC by the 2nd Respondent. The said Exhibit P12 is not the original copy of the said Form EC9. It is a photocopy and it is purported to be a certified true copy. Under cross-examination PW7 admitted that she did not pay a certification fee for the document because she was producing it on a subpoena as a document in the custody of INEC. The fact that the certification fee for the document was not paid is also apparent in the lack of a receipt for the certification fee, and also in the absence of an endorsement on the face of the document that the certification fee was paid.
Egbona: Through Oversight Functions, We’ll Take Steps to Revitalise healthcare delivery in Nigeria
“We submit that the conditions precedent to the admissibility of any document as a certified true copy of a public document are set out in section 104 of Evidence Act. One of those conditions is the payment of a certification fee. On that particular requirement section 104(1) of the Evidence Act states as follows –
“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 prescribed in that respect, together with a certificate written at the foot of such copy that it is a true copy of such document or part of it as the case may be”
“Based on the above provision, together with the provision of section 104(2) of the Evidence Act, the Supreme Court held in TABIK INVESTMENT LTD v. GUARANTY TRUST BANK PLC (2011) All FWLR (Pt 602) 1592 at 1607 para H, as follows –
“Before a public document can be tendered and accepted by the court it must be certified. A public document is certified if: (1) it is paid for, (2) there is an endorsement/certificate that it is a true copy of the document in question; (3) the endorsement/certificate must be dated and signed by the officer responsible for certification with his name and official title”
“The statutory requirement that a certification fee must be paid before the admission of any document as a certified true copy does not admit of any exemption, even for a public officer who is certifying a document in his custody for the purpose of producing same on a subpoena. Thus in TABIK INVESTMENT LTD v. GUARANTY TRUST BANK PLC (supra) at 1604-1605 para H-B, where it was argued that public officers are exempted from payment of certification fee for documents in the custody, the Supreme Court held as follows –
“…. the provision of section 111(1) of the Evidence Act [now section 104(1) of Evidence Act, 2010] is clear and unambiguous, and so should be subjected to simple interpretation. The fact that it sets out conditions that must be satisfied before a public document is admitted in evidence, requires that such conditions must be met. The argument that the payment of legal fees required in section 111(1) [now 104(1)] of the Evidence Act supra would be by private members of the public who are applying for such certified true copies of the public document, and not payable by government department as in this case, holds no water ….. That is to say that the provision of section 111(1) of the Evidence Act has left no room for any exemption, for if the legislature intended or contemplated that there would be any such exemption, it would have been specifically stated”.
“Ordinarily, when a public officer is subpoenaed to produce a public document in his custody, what he is expected to produce is the original copy of that document. But, where it is impracticable to produce the original document, only a certified true copy, properly so called, and nothing else will be admissible in evidence. Thus in EMMANUEL v. UMANA (2016) All FWLR (Pt 856) 214 at 281 paras A-C (which was also an election petition matter) the Supreme Court held, per Nweze JSC, that –
“…. a document can only be called a certified true copy of a public document if, in addition to the payment of legal fees prescribed in that respect, together with a certificate written at the foot of such copy that it is a true copy, it (the certificate) is ‘dated and subscribed by such officer with its name and his official title’. In effect any document that falls below the above mandatory threshold is inadmissible as a certified true copy”
“In the instant case, therefore, we submit that Exhibit P12 is not admissible as a certified true copy because the statutorily mandatory certification fee for the document has not been paid, and we respectfully urge this Honourable Tribunal to so hold.”
On the issue of Egbona not winning the highest number of lawful votes, the lawmaker who is now the chairman of the House committee on Specialty Healthcare Services also rubbished Ifere’s submissions.
Hear him: “On this issue we adopt the arguments in paragraphs 1.3 to 1.8 of the written address in support of our motion of 12/5/2023 for the dismissal of this Petition. In addition, we submit that by section 168(1) of the Evidence Act, a court or Tribunal is legally obliged to presume that the official election result as declared by INEC is correct. See NYESOM v. PETERSIDE & ORS (2016) LPELR-40036(SC) at 76 para. F. In effect, this Honorable Tribunal is legally obliged to presume that in the election of 25th February 2023 at Abi/Yakurr Federal Constituency the 2nd Respondent won the majority of 20,482 lawful votes to defeat the 1st Petitioner who scored only 10,845 lawful votes as declared by INEC.
“The onus is therefore on the Petitioners to adduce cogent and credible evidence to rebut the legal presumption on the correctness of the official result as declared by INEC. To discharge that onus of proof the type of evidence the Petitioners must adduce was stated in the case of OLUWASOGO & ANOR v. INEC & ORS (2019) LPELR-49449(CA) at 29-31 paras. C as follows –
“…… a petitioner who challenges the legality of or unlawfulness of votes cast at an election must do the following: (i) He must plead two sets of scores that is the scores announced by the electoral umpire which he considers to be unlawful and the scores he believes to be correct, (ii) He must tender in evidence all the necessary forms at the election, (iii) He must call witnesses who have capacity to give positive, direct and credible evidence to prove how votes were misapplied at the election, (iv) He must prove that the illegality and/or unlawfulness affected the result of the election substantially”. (The underlining made for emphasis is ours)
“In this case, the Petitioners have failed on the first requirement because they did not plead two sets of results, the one declared by INEC and the one they claim to be correct. The effect of the Petitioners’ failure to plead the scores of all candidates is that any parole or documentary evidence led by the Petitioners on the scores of candidates that were not pleaded will go to no issue. It is immaterial that the Petitioners have pleaded result forms containing the votes scored by all candidates, because such forms can only be admitted as proof of scores that are pleaded, and not to prove unpleaded facts. See ISHOLA vs UBN LTD (2005) All FWLR (Pt 256) 1202 at 1213 paras G-H (SC).
“The Petitioners have also failed on the second requirement stated in OLUWASOGO v. INEC (supra) because they did not tender all the relevant polling units and wards result in Forms EC8A(II) and EC8B(II). In Exhibit P4 the Petitioners tendered Forms EC8A(II) for polling units in all the wards in Yakurr LGA, except Afrekpe/Ekpenti Ward, Biko Biko Ward and Idomi Ward, Even in the wards in Abi and Yakurr LGAs where some polling units results have been tendered, the Petitioners still omitted to tender a significant number of polling units results in Form EC8A(II) and they did not offer any explanation whatsoever for their failure to tender those results.
“In the absence of results in Form EC8A(II) for all polling units where election was held, we submit that the Petitioners have failed in their duty to place before this Honourable Tribunal all the evidence that are necessary for the Tribunal to determine whether the votes scored by the candidates as announced by INEC was correct or not. In a similar situation the Court of Appeal held in AMGBARE v. SYLVA (2009) 1 NWLR (Pt 1121) 1 at 62-63 paras H-F as follows –
“Production of the result of the polls counted at the polling units by the presiding officer and recorded in Form EC8A is an essential element of the burden of proof …… It is only by reference to Form EC8A that the authentic figure at the polls will be ascertained”
See also BABA-AHMED v. ADAMU (2009) All FWLR (Pt 473) 1257 at 1273 paras E-F and SUNDAY & ANOR v. INEC & ORS (2019) LPELR-49851(CA) at 7-8 paras. C-A where election petitions on the ground that the returned candidate did not win majority of the lawful votes were dismissed because the Petitioners did not tender all the relevant polling unit results.
“On the third and fourth requirements stated in OLUWASOGO v. INEC (supra), the Petitioners also failed because they did not call witnesses who have the capacity to give direct and credible evidence on the legality or otherwise of the votes cast at the election and/or testify as to how the votes were collated or misapplied. In WADA v. INEC (2022) 11 NWLR (Pt 1841) 293 at 326-327 paras G-A the Supreme Court held that –
“….. the best form of evidence to be led in prove of such allegation [i.e. that the candidate returned did not win the majority votes] is those of the poling unit agents who witnessed the infractions at the various polling units. See Omoboriowo & ors v. Ajasin (1984) LPELR – 2643(SC).; (1984) 1 SCNLR 108. Clearly, a petitioner cannot skip the evidence of what transpired at the polling unit because it is there that accreditation, voting, sorting and counting of votes, recording of results and signing of Form EC8 series are done. And if there was any ballot box snatching or any violence at the polling station, it is those who were present who can give admissible and reliable evidence. Should there be any infraction thereafter, e.g. alteration of results, it is safe to say that it will be easier to compare what happened at the polling unit with what took place thereafter …… The learned senior counsel for the appellants in the instant appeal submitted that there was no need to call polling unit agents to prove their petition. I can say emphatically as both the trial tribunal and the court below that such miscalculation was fatal to their petition”
“We respectfully urge this Honourable Tribunal, therefore, to find and hold that on the evidence adduced the Petitioners have failed to prove their contention that the majority of the lawful votes cast in the election of 25th February 2023 in Abi/Yakurr Federal Constituency was won by the 1st Petitioner and not by the 2nd Respondent. In effect the Petitioners are not entitled to the first, second and third Reliefs in their Petition and we respectfully urge this Honourable Tribunal to so hold.”
Ironically, Ifere did not file a counter address before the tribunal, an apparent indication that he had accepted the submissions of Egbona. A date for judgement will be communicated to the parties.
