By Kenneth Opara, Esq.
In its Judgment Supreme Court relied heavily on the testimony of PW54 (Rabiu Hussein) a Deputy Commissioner of Police and the results tendered by him marked Exhibits PPP1-PPP366 in holding that Hope Uzodinma scored the majority of lawful votes in the Imo State Governorship Election and declaring him winner of the election.
2. However, PW54 merely dumped the purported election results (Exhibits PPP1-PPP366) on the trial tribunal and did not in anyway link the said documents to the case of Hope Uzodinma.
3. Under cross examination the PW54 unequivocally admitted as follows;
(i) that he was not in any of the 388 polling units on the election day;
(ii) that he was not present when the documents were recorded, prepared and or entries thereon made;
(iii) that he did not know or have the names of the Policemen who allegedly collected the documents from the 388 polling units and the polling units they worked;
(iv) that Exhibits PPP1-PPP366 were not submitted to him by any Policeman;
(v) that Exhibits PPP1-PPP366 were handed over to him by the Police Administrative Officer as the results from the polling units.
4. It is noteworthy that the Policemen who allegedly worked in the polling units, received the 366 documents and submitted same to Police Headquarters were not called to testify by Hope Uzodinma. The Police Administrative Officer who allegedly received the 366 documents from the Policemen were not called to testify. Furthermore, the Presiding Officers who allegedly made the entries and signed the 366 documents and the polling unit agents did not also testify.
5. The Supreme Court has maintained in a long line of decided cases that a Petitioner, like Hope Uzodinma, in order to succeed must call as witnesses eye witnesses who were present when the election was conducted, were present when the entries in the forms were made and can testify to how entries in the documents were arrived at. The evidence must come from persons who had first hand, actual and positive interaction with the election at the polling units. Persons who did not take part in the conduct of election at the polling units cannot testify on the happenings at the polling units on election day. Evidence must be direct and not hearsay evidence, and the makers of the documents must tender them otherwise the documents become documentary hearsay.
6. In BUHARI v. OBASANJO (2005)13 NWLR (Pt 941)1 at 315-316 Paras B-C the apex court held thus:
“On the question whether the evidence led in support is sufficient to warrant the decision reached on the point by the court below, it is necessary to examine the said evidence led. The position of the law regarding the type of evidence which must be led in support of allegations in which figures or scores of candidates at an election are being challenged should come direct from the officers who were on the field where the votes were counted and/or collated …see OMOBORIOWO v. AJASIN (1984) 1 SCNLR 108; and HASHIDU v. GOJE (2003) 15 NWLR (Pt. 843) 352. In the HASHIDU v. GOJE case, supra, I stated the position of the law on the point on page 393 of the report as follows …None of these party agents was called to testify. Similarly, none of the INEC polling agents was called to testify and confirmed the figures since they should be the makers of the forms on which the figures given were written. It follows therefore that the evidence given by the said PW1 on the figures and relied on by the Lower Court was totally inadmissible because it is hearsay evidence. The court below was therefore wrong in relying on the figures.”
And in BUHARI v. INEC (2008) 19 NWLR (Pt 1120) 246 at 391-392 it was held as follows:
“Weight can hardly be attached to a document tendered in evidence by a witness who cannot or is not in a position to answer questions on the document. One such person the law identifies is the one who did not make the document. Such a person is adjudged in the eyes of the law as ignorant of the content of the document.”
And recently in the Presidential Election Appeal SC.1211/2019 ATIKU ABUJAKAR & ANOR v. INEC & OTHERS delivered on 15/11/2019 the Supreme Court per Tanko Muhammed CJN held thus:
“With regards to the evidence of PW60, it is clear that he was not on the field to gather the data he used to compute the results he intended the lower court to use to enter judgment for the 1st Appellant. In the case of Atiku Abubakar & Ors v. Umaru Musa Yar-adua & Ors (2008) 19 NWLR (Pt.1120) 1 at 173 E – G, this Court per Niki Tobi, JSC (of blessed memory) held as follows:
“A petitioner who contests the legality or lawfulness of votes cast in an election and subsequent result must tender in evidence all the necessary documents by way of forms and other documents used at the elections. He should not stop there. He must call witnesses to testify that the illegality or unlawfulness substantially affected the result of the election. The votes are recorded. The witnesses are those who saw it all on the day of the election not those who picked the evidence from eye-witnesses. No, they must be eye-witnesses too… It is not enough for the Petitioner to tender only the documents. It is incumbent on him to lead evidence in respect of the wrong doings or irregularities both in the conduct of the election and recording of the votes, wrong doings and irregularities which affected substantially the result of the election. (underlining mine for emphasis).
Clearly, the PW60 was not available in the 11 focal states which he sought to establish the anomalies or irregularities which the Appellants pleaded. The documents he used to analyze the results were not made or signed by him”
And further held thus:
“As I said earlier, which is the correct position of the law, only witnesses who actually saw what happened at the polling units can give credible evidence of what they saw. See Hashidu v. Goje (2003) 15 NWLR (Pt. 843) 352, Oke v. Mimiko (2014) 1 NWLR (Pt. 1388) 332 at 376, Andrew v. INEC (2018) 9 NWLR (Pt. 1625) 507 at 563”
See also Okechukwu v. INEC (2014) 17 NWLR (Pt. 1436) 255 at 299, and recent Abia State Governorship Appeal – Alex Otti v. Ikpeazu.
7. The failure of the Appellants (Uzodinma & APC) to call the Presiding Officers, polling agents and Policemen present at the 388 polling units was fatal, because the Appellants in the circumstance failed to call persons who had first hand, actual and direct knowledge of happenings in the 388 polling units. The PW54 was not present at the polling units, did not see the making of the 366 documents and was not the maker of these documents. The law is trite that a person who did not make a document is not competent to give evidence on it. It is also settled that where the maker of the documents is not called to testify (as in the instant appeal) the document would not be accorded probative value by the court. Udom Emmanule v. Umana (supra), Wike v. Peteside (2016)7 NWLR (Pt. 1512) 452.
Therefore the Supreme Court ought not to have attached probative value to PW54’s evidence and the documents he tendered (i.e. Exhibits PPP1 – PPP 366). See Atiku Abubakar v. INEC (supra) where it was held thus:
“The above quotation from the case of Magaji v. Nigerian Army (supra) is very clear and unambiguous. There is nothing in that judgment which suggests that whenever a certified true copy of public document is tendered in court, the maker need not be called to testify. That would be strange.
However, if the intention is just to tender the douments, of course, it can be done without the maker as was done in this Bar. But if the intention is for the court to act on those documents, the makers must be called to speak to those documents and be cross examined appropriately. It is then and only then that a court can attach probative value to it. See Andrew v. INEC & ors (supra), Ikpeazu v. Otti (2016) 8 NWLR (Pt. 1513) 38, Buhari v. INEC (2008) 18 NWLR (Pt. 1120) 246, Gabriel Udom Emmanuel v. Umana Okon Umana & ors (2016) 12 NWLR 9Pt. 1526) 270 at 286.
It is therefore not difficult to appreciate the court below when it held that the appellants merely dumped those documents on the court. The court is not permitted to go home and interrogate those documents privately in the inner recess of its chambers. This will amount to shopping for evidence, thus descending into the arena of the conflict. See Labaran Maku v. Umaru Tanko Al-Makura (2016) 5 NWLR (Pt. 11505) 201 at 230. One wonders how the Appellants expected judgment to be entered in their favour when they failed to do the needful in respect of those documents which were the pivot of their petition”