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IN THE SUPREME COURT OF NIGERIA

ON FRIDAY, THE 20TH DAY OF JANUARY 1984

SC 109/1983

BETWEEN

DR. TORTI UFERE TORTI ......................................... APPELLANTS

AND

CHIEF CHRIS UKPABI & 2 ORS ......................................... RESPONDENTS

BEFORE: Sowemimo, C.J.N., Irikefe, Bello, Obaseki, Eso, Aniagolu, Uwais; JJ.S.C.

 

The appellant and the first respondent were candidates for the election to the Umuahia Senatorial district. The Federal Electoral Commission (FEDECO) which body was constitutionally set up to conduct the election declared the first respondent elected. The figures as announced by FEDECO were as follows- N.P.N. (Ukpabi) 172,071 N.P.P. (Torti) 153,832. Thus the N.P.N. had a majority of 18,239.

In this case, the appellant disputed only three constituencies. The sum total of this is that the appellant contended that there has been an inflation of 40,000 votes in favour of the N.P.N. The appellant contended that FEDECO employed a most implicit method. That commission inserted “1” in front of the score of the N.P.N. in the Olokoro/Ubakala Constituency. The correct score according to the appellant was 6,535 and when the figure “1” was placed before the correct figure of 6,535, it became 16,535.

In regard to Ohuhu/Umuopara Constituency the first figure “1” in the score 11,561 was changed to “2” and thus the score 21,561, thus wrongfully inflating the score by 10,000. Whereas as regards Isiazu Constituency, the method was advanced, this time by placing the figure “2” before the correct score of 2,377, thus we had there 22,337 a wrongful inflation of 20,000.

The trial court found that the figures were wrongfully inflated with the active assistance of the Police. The Court then declared the appellant elected.

An appeal went to the Federal Court of Appeal. That Court in an unanimous judgment allowed the appeal, set aside the judgment of the High Court mainly on the grounds that the appellants had not proved his case beyond reasonable doubt and that the document relied upon by him were copies which were inadmissible in evidence.

The appellant was dissatisfied with the judgment of the Federal Court of Appeal, he thereof appealed to the Supreme Court and the points taken in that Court are:

(a) admissibility of the exhibits relied upon the appellant in proof of his case, (b) s tandard of proof; and (c) whether the exhibits were tendered from proper custody or not.

 

HELD:

(1) In addition to what I have said in the earlier cases of Nwobodo and Omoboriowo, it is possible to strike out the paragraph which deals with the allegation of crime in this case and still retain sufficient pleading to prove the case of the petitioner.

(2) In this case, the proper custody without doubt is with the Federal Electoral Commission. But that is not the issue in this case. The issue admissibility. I think that admissibility should be based on relevance and not proper custody. Once a matter, be it a document or oral evidence is relevant, it is admissible. Proper custody only raises the issues of presumption, or to put it more clearly the weight to be attached to the evidence, documentary or otherwise to be admissible, it is sufficient that proper ground of its relevance is laid.

Appeal allowed.

Chief F. R. A. Williams S.A.N. (With him, Chief J. N. Obanna, I. I. O. Ukoha and T. E. Williams) for the appellant.

Dr. M. Odje, S.A.N. (with him C. Ofodile, S.A.N. and Dr. Kusamotu) for first respondent.

Professor A. B. Kasumu, S.A.N. (with him Y.D.C. Nwoke, O.O. Babalola, G. M. Onwuchekwa, and O. Lawal) for the second and third Respondents.

Cases referred to:

(1) Chief Akin Omoboriowo v. Chief A. Ajasin (1984) 1 SC pp. 206–257.

(2) Karuma v. The Queen (1955) AC 197 at 203.

(3) Chief Jim Nwobodo v. Chief C. C. Onoh (1984) 1 SC p.1–205.

(4) Sadu Yaro v. The State (1968) 1 All NLR 124; 129–130.

(5) Ikoku v. Obi (1962) All NLR 194.

(6) Godwin Nwankwere v. Joseph Adewunmi (1966)1 All NLR 129.

(7) Ogbunyiya v. Okudo (1979) LRN 318.

(8) Okeowo & Ors v. Migliore & Ors (1979)11 SC 138.

(9) A. R. Mogazi & Ors v. R. Odofin & Ors (1978)4 SC 91.

(10) Arab Bank Ltd. v. Ross (1952)2 QB 216

Statutes referred to:

(1) Electoral Act 1982

(2) Evidence Act.

Eso J.S.C. On 2nd November, 1983, I allowed the appeal of Dr. T. U. Torti, the appellant in this appeal against the judgment of the Federal Court of Appeal. In my judgment I described the system employed by the respondent as simplistic but crude. I will now give my reasons for the conclusion I reached in my judgment.

The background to this case is very simple. Both the appellant, Torti, and the first respondent, Ukpabi, were candidates for election to the Umuahia senatorial district. The Federal Electoral Commission (FEDECO), which body was constitutionally set up to conduct the election, declared the first respondent elected. The figures as announced by FEDECO were as follows:—

N.P.N. (Ukpabi) 172,071
N.P.P. (Torti) 153,832
thus the N.P.N. had a majority of 18,239.

In this case the appellant disputed only three constituencies to wit—

(i) Olokoro/Ubakala–wherein FEDECO recorded the N.P.N. as having scored 16,535 and the N.P.P. 6,224. Whereas according to the contention of the appellant the N.P.N. scored 6,535 and not 16,535. In this, appellant complained of an inflation of 10,000 votes.

(ii) Ohuhu/Umuopara. Here, FEDECO recorded the N.P.N. as having scored 21,561 as against the N.P.P. 8,750. The complaint here is that FEDECO inflated the N.P.N. figures by 10,000.

(iii) Isiazu. FEDECO recorded 22,337 for the N.P.N. and 8,462 for the N.P.P. The appellant contended that the FEDECO has inflated the figures by 20,000 votes.

The sum total of this is that the appellant contend that there has been an inflation of 40,000 in favour of the N.P.N. How was it done? The appellant contented that the FEDECO employed a most simplistic method. That Commission inserted the figure “1” in front of the score of the N.P.N. in the Olokoro/Ubakala constituency. The correct score according to appellant was 6,535 and when the figure “1” was placed before the correct figure of 6,535 it became 16,535.

In regard to Ohuhu/Umuopara Constituency the first figure “1” in the score 11,561 was changed to “2” and thus the score was turned to 21,561 thus wrongfully inflating the score by 10,000, whereas as regards Isiazu Constituency, the method was advanced, this time by placing the figure “2” before the correct score of 2,337, thus we had there 22,337 a wrongful inflation of 20,000.

The trial court found that the figures were wrongfully inflated with the active assistance of the police. The judges Amadi-Obi, Onunuyi and Alilionwu J.J., condemned in unmistakable terms the conduct of the police. The judges said—

“The court condemns in very strong terms the interference of the police in the conduct of this election as shown in Ex. M which we consider as creating an opportunity for the third respondent (sic the returning officer) to falsify the results in Ex. M.”

The court then declared Dr. Torti as elected.

An appeal went to the Federal Court of Appeal. That Court (Aseme, Belgore and Aikawa J.J.C.A.), in a judgment delivered by Belgore J.C.A., to which the other learned Justices concurred, allowed the appeal of Ukpabi, set aside the judgment of the High Court mainly on the grounds of Torti’s case not having been proved beyond reasonable doubt and that the documents relied upon by him were copies which were inadmissible in evidence.

Belgore J.C.A. said—

“As for the allegation of falsification of results the learned trial Judges in the election court erred. The petition is very clear in its allegations. It mentioned falsification of the figures in the election result either by third respondent alone, or in connivance with State Commissioner of Police or with some other persons known. The election court narrowed down the grounds to the following only:—

(a) the third respondent wrongly returned the first respondent Chief Chris Ukpabi as being duly elected;

(b) that the petitioner scored 159,980 votes as against 138,104 votes scored by the first respondent at the election;

(c) that the first respondent was not duly elected by majority of lawful votes cast at the said election;

(d) that the petitioner scored the highest number of votes at the election and also scored more than 25% of the lawful votes cast in each of the twenty State constituencies in the senatorial district.

The petition in paragraph 9 is very clear.

‘9

(i) That your petitioner in company of one of his agents Mr. Kalu Uko went into the senatorial headquarters and confronted the third respondent to add up the results and announce the same. Third respondent produced a sheet of paper (From EC8) already written up with a falsified result and said “as you can see, this is not of my making, this is what they asked me to announce, and as you can see, they said Chief Chris Ukpabi won the election.”

(ii) That your petitioner’s agent Mr. Kalu Uko (PWI)took the copy of the falsified election result from the third respondent and demanded to know who the “Higher Forces’ are that instructed the third respondent to read a result he knew was false, but third respondent wouldn’t answer. As voices went high the same police insisted that the agent and your petitioner must leave and they left. The said copy of falsified declaration of result Form EC8 will be founded upon at the trial.’

The Electoral Act states in section 70 as follows:

‘70. After counting the votes and ascertaining the result of the pools the returning officer shall

(a) complete and sign the certificate of return in Form EC8 in the Schedule to this Act;

(b) deliver a ‘signed copy’ of the certificate to each candidate or his counting agent;

(c) declare the result of the poll by reading the completed certificate of return aloud in the place of counting;

(d) cause to be delivered to the Commission the original of the certificate of the return.

Section 72 of the Act in sub-section 1 and 3 then provide:

’72

(1) The returning officer shall deliver all documents relating to the conduct of the election to the Commission who shall be responsible for their safe custody.

(3) Documents in custody of the Commission shall not be available for any purpose except as required under an order for inspection made by a court of law on an election petition.

The documents admitted as Exhs. A, A1–A19 are copies by virtue of S.70(b) of the Act, the original is the one sent to Commission by virtue of sub-section (d) thereof. S.72 (1) mentions the proper custody of the returns after being announced and sub-section (3) thereof shows how they can be produced. Signed copied should not be confused with those documents executed by virtue of S.93 Evidence Act. The Electoral Act is a special animal among other legislations and the National Assembly has clearly provided therein how its documents could be produced for evidence. Exhs. A, A1–A19 may be and may not be what the polling agents received from assistant returning officers. There are even contradictions in the evidence of the petitioner about the authenticity of some of them. Falsification of result is a criminal offence punishable under S. 105(1)(e) of the Electoral Act. The only proof is what can be made of exhibit A, A1-A19 which are secondary evidence and in the absence of proof of destruction or unavailability of the original and circumstances under S.96 Evidence Act and are therefore wrong admitted. The election court acted on them heavily to decide the fate of the petition and never adverted its mind to imputation of crime which by virtue of S.137(1) Evidence Act must be proved beyond reasonable doubt. The proof here even falls short of preponderance of doubt. The case of the petitioner is no more than a guest doubt which in law will be resolved in favour of the respondent. In election petitions, once reliance is placed on the commission of a criminal offence, it must be proved beyond reasonable doubt.”

Now, in this Court the points taken by Chief Williams are as follows:—

(i) Admissibility of the exhibits relied upon by the appellant in proof of his case.

(ii) Standard of Proof: Whether the case should have been proved beyond reasonable doubt or not; and

(iii) Whether the exhibits were tendered from proper custody or not.

The last point would appear to me to be the most important as we have already dealt with the other points in previous judgments, vide Chief Jim Nwobodo v. Chief C. C. Onoh and Chief Akin Omoboriowo v. Chief A. Ajasin. All the same I would like to deal with the point of standard of proof very briefly but as the issue of admissibility is tied up with the proper custody vel non, I will deal with these two together later.

Standard of Proof:

In addition to what I have said in the earlier cases of Nwobodo and Omoboriowo, it is possible to strike out the paragraph which deals with allegations of crime in this case and still retain sufficient pleading to prove the case of the petitioner. It is paragraph 9 that talks of falsification of results and it reads—

“That your petitioner in company of one of his agents Mr. Kalu Uko went into the senatorial headquarters and confronted the third respondent to add up the results and announce the same. Third respondent produced a piece of paper (Form EC8) already written up with a falsified result and said ‘As you can see, this is not of my making, this is what they asked me to announce and as you can see they said Chief Chris Ukpabi won the election.’

(ii) That your petitioner’s agent Mr. Kalu Uko took the copy of the falsified election result from the third respondent and demand to know who the ‘Higher Forces’ are that instructed the third respondent to read a result he knew was false, but third respondent wouldn’t answer. As voices went high the same police insisted that the agent and your petitioner must leave and they left. The said copy of falsified declaration of result Form EC8 will be founded upon at the trial.”

But even if this paragraph had been material for the success of the case of the petitioner, the Court must still do substantial justice.

Now, talking point about the allegation of falsification. Ex. M was prepared by the returning officer purportedly to give a full picture of the scores at the election. The trial court found, in regard to this exercise, as follows—

“This court rejects Ex. M as it has no place in the Electoral Act of 1982 and it has not been identified by those alleged to have signed it. The court cannot help feeling that Ex. M was entered to enhance the preparation of the falsification of the figures. The court has examined Ex. A to A19 and Ex. C and compared them with the entries made in Ex. M and found out that all the entries made in Ex. M agree with the figures shown in Ex. A to A19 and Ex. C except in the cases of Ex. A1 for Olokoro/Ubakala State Constituency, Ex. A9 for Ohuhu/Umuopara State Constituency and Ex. A.11 for Shag State constituency. In Ex. A1 The figure for the N.P.N. showed 6,535. While in Ex. M it shows the N.P.N. scores as 16,535. This figure in our view was obtained by inflating the figure by 10,000 by changing the first figure “1” to “2” in 11561. In Ex. A.11, the figure for N.P.N. is 2,337. But in Ex. M the figure for the N.P.N. is 22,337. This figure in our view was obtained by inflating the total figure by 20,000 by inserting the figure “2” before the figure “2” in 2337. It is therefore obvious that the number of votes credited to the respondent the N.P.N. candidate was inflated by a total votes of 40,000 and from the totality of evidence we so find. The court therefore finds as a fact that Ex. B is a false document. It is significant to note that in Ex. B the total number of votes ascribed to all the candidates in Ex. B is added it comes to 337772. Even if the invalid votes as shown on Ex. M which is 4229 is deducted from 341461 the balance will not be 337771 but 337232.

The court condemns in very strong terms the interference of the police in the conduct of this election, as shown in Ex. M which we consider as creating an opportunity for the third respondent to falsify the results shown in Ex. M.”

This is a very serious indictment on the police.

With regard to the nefarious part played by the police, the Federal Electoral Officer who was witness for the respondent gave the following evidence—

“At about 5 p.m. when I saw the third respondent he introduced himself as the senatorial returning officer for the senatorial election in the district. I then showed him where the final collation would take place and left for my house to get ready to return. At a time after 9 p.m. I returned to the final collation centre, but I did not meet the third respondent. The centre was empty then. I went out to inspect other centres and returned to the final collation centre at seventeen after 10 p.m. But again I never meet the third respondent there. I then left and returned to the centre at between 5 a.m. and 6 a.m. the following day 21st August 1983. Then I saw the third respondent and some collation going on. That was not part of my function. As I was there I saw a number of returning officers handling over their results sheets to the third respondent and he was entering them on his schedule. Later I saw him using the adding machine to total the figures. As he was actually doing the totalling of the figures with the machine a police officer came in with a letter and dispatch book. The police officer gave the third respondent the letter and asked him to sign his despatch book which he did. After opening the letter the third respondent read it and handed it over to me and I read it and returned it to him. I then saw the third respondent packing his electoral documents and said that he had been instructed to come to Owerri without declaring the result of the election. There was a vehicle assigned to the third respondent in Umuahia by the Federal Electoral Commission. It was the vehicle that the third respondent used to go to Owerri while I was in charge of that vehicle from the point of view of my function as the administrative officer in the election matters. When the third respondent… wanted to go to Owerri there were some arguments as to whether he should go. At that juncture the police surrounded the premises and escorted the third respondent to the vehicle. As the vehicle moved, the people dispersed and I left. I was not invited to Owerri. By the guideline we received the third respondent should give me a copy of the final result. But he never did so to me. I was not present when the result of the election was desired.”

Cross-examined, he said inter alia—

“There was no disorder in the conduct of the election and at the collation of the votes that could affect the adding and declaration of the results. I do not know of any irregularity in the conduct of the election that could have necessitated the writing of the letter from the police.”

Now the police had no business with the election under the Constitution or the Electoral Act. The duty of the police was to maintain law and order. According to the evidence led even by the first respondent himself there was no disorder in the conduct of the election yet the police, even from their headquarters at Owerri, interfered with the peaceful conduct of election, collected the returning officer to Owerri having stopped him from making the announcement of the results as required by law. By the time there had been interference in Owerri, actively supported by the police, the figures had been inflated by actual forgery of figures by 40,000. To say the least, this was a disgrace on the part of the police as it was criminal. It is unfortunate that the Federal Court of Appeal showed no interest in this aspect of the case notwithstanding that it directed itself correctly on the facts thereto. I think the stricture by the trial court of the police is justified, and to remove the disgrace, I hope the Inspector General of Police would look into this matter, cause the conduct of the police officers concerned to be investigated and deal with the matter according to law. For this reason I direct that the Chief Registrar of this Court should forward a copy of this judgment to the Inspector General of Police with his attention drawn to this portion of this judgment.

Admissibility and Proper Custody:

Chief Williams submitted in this part that the issue of proper custody is not relevant when dealing with admissibility of a document. It is only relevant in the issue of weight. If a document comes from proper custody, submitted learned senior Advocate, the court can presume its genuineness. If a document is relevant once it is shown to be so, it is admissible. And Chief Williams brought to our attention section 122 of the Evidence Act and the decision in Ogbunyiya v. Okudo 3 LRN 318; 322. Kuruma v. The Queen (1955) AC 197,203 Sadu Yaro v. The State (1968) 1A11 NLR 124; 129-130.

On this issue, Professor Kasunmu S.A.N. for the second and third respondents made a distinction between evidence simpliciter, as distinct from documentary evidence, and submitted that documents must be authentic and so they must come from proper custody.

The issue of proper custody arose in this case as a result of the pronouncement of the Federal Court of Appeal on Exhibits A, A1–A19. The court said—

“The documents admitted as Exhs. A, A1–A19 are copies by virtue of S.70(b) of the Act, the original is the one sent to the Commission by virtue of sub-section (d) thereof S.72(1) mentions the proper custody of the returns after being announced and sub-section (3) thereof shows how they can be produced. Signed copies should not be confused with those documents executed by virtue of S.93 Evidence Act. The Electoral Act is a special animal among other legislations and National Assembly has clearly provided there in how its documents could be produced for evidence. Exhs. A, A1–A19 may be and may not be what the polling agents received from assistant returning officers. There are even contradictions in the evidence of petitioner about authenticity of some of them.”

The Electoral Act 1982 provides in s.70 ass follows—

“70. After counting the votes and ascertaining the result of the polls the returning officer shall—

(a) complete and sign the certificate of return in Form EC8 in the Schedule to this Act;

(b) deliver a signed copy of the certificate to each candidate or his counting agent;

(c) declare the result of the poll by reading the completed certificate of return aloud in the place of counting;

(d) cause to be delivered to the Commission the original of the certificate of return.”

and in s. 72 it provides—

“72.

(1) The returning officer shall deliver all documents relating to the conduct of the election to the Commission who shall be responsible for their safe custody.

(2) The Commission shall retain for a period of twelve months all the documents relating to an election forwarded to it as required under sub-section (1) of this section; and unless otherwise ordered by a court of law or notified of legal proceedings in respect of such election, it shall at the end of that period cause the documents to be destroyed.”

Belgore J.C.A. was in effect saying that for the documents to be admissible, they must have come from the Federal Electoral Commission itself which has safe custody of these documents as per s.72(1) of the Electoral Act. The signed copies which were given to the candidates or their counting agents under s.70 (b) are copies and inadmissible.

With great respect to his Lordship, he cannot be right. To start with, each copy, given to the candidate or his counting agent, is an original under s.70 (b) of the Act and is admissible. But even then on the question as to who has proper custody of these documents, Idigbe J.S.C. delivering the judgment of this Court in Ogbunyiya v. Okudo (1979) 3 LRN 318 put his finger directly on the interpretation of the words proper custody.

The learned Justice of the Supreme Court said, quoting the learned author of Phipson on Evidence 12th Edn. Art 1762 at p.731 with approval—

“What, after all, is meant by the expression ‘proper custody’ of a document? It means no more than ‘its deposit with a person and in a place where, if authentic, it might naturally and reasonably be expected to be found’ and ‘proof of production from proper custody is required not as a ground for reading the document but to afford the Judge reasonable assurance of its being what it purports to be’.”–See p.322 of the report.

In this case, the proper custody without doubt, is with the Federal Electoral Commission. (See s.72 of the Electoral Act).

But that is not the issue in this case. The issue is admissibility. I think that admissibility should be based on relevance and not proper custody. Once a matter, be it a document or oral evidence is relevant, it is admissible. Proper custody only raises the issue of presumption, or, to put it more clearly, the weight to be attached to the evidence, documentary or otherwise, after admission. For evidence, documentary or otherwise to be admissible, it is sufficient that proper ground of its relevance is laid.

It is for all these reasons that I allowed the appeal of Dr. Torti on 2nd November, 1983.

SOWEMIMO C.J.N. On the 2nd of November, 1983, this appeal was allowed and the judgment of the Imo State High Court, sitting at Umuahia was reinstated. It was found on the record of proceedings in the High Court that the votes scored by the appellant were mutilated to the extent that the result declared did not represent the true lawful votes cast by the voters. After a careful perusal of the proceedings in the High Court, there does not seem to be any justification for the Federal Court of Appeal, Enugu to set aside the decision of that court. I am satisfied that if the true figures of the lawful votes cast for the appellant were not interfered with, he should have been returned as the successful candidate.

It is to be regretted that those who were officially appointed to record votes mutilated the figures and the result declared did not reflect the true result of the election. Unnecessary technical points were raised during the course of argument before us but whatever they were, the true result was affected. I therefore found no difficulty in setting aside the judgment of the Federal Court of Appeal Enugu, and reinstating that of the Imo State High Court sitting at Umuahia. These are my short reasons for allowing the appeal.

Irikefe J.S.C. Judgment was delivered in this matter on 2nd November, 1983. We stated then that we would give our reasons for the said judgment on 20th January, 1984. In the interim, a change of government took place on 31st December, 1983 and I am thus satisfied that, in view thereof, no reasons for the said judgment are now called for.

Bello J.S.C. I adopt the reasons for judgment written by my learned brother, J.S.C.

Obaseki J.S.C. I dismissed this appeal on the 2nd day of November, 1983 and I now give my reasons for the judgment.

The appellant was the petitioner in an election petition filed in the High Court of Justice of Imo State at Umuahia on the 24th day of August, 1983 challenging the election or return of the first respondent, Chief Chris Ukpabi and seeking the court’s declaration that he ought to have been returned and was duly elected and returned as senator for the Umuahia senatorial district. Mr. Okereke, the Federal Electoral Officer, Umuahia senatorial district and Dr. M. Ozurumba, returning officer for Umuahia senatorial district were also made respondents to the petition in addition to Chief Chris Ukpabi.

The petitioner claimed to have received a majority of votes lawfully cast at the election and this is evident from paragraph 3(1), (ii) and (iii); 4, 5, 6(i), (ii), (iv), 11(ii), and 12 of the petition. These paragraphs read as follows:

“3.

(i) And your petitioner says that at the said election from the sum total results returned by the twenty assistant returning officers of the Federal Electoral Commission for the twenty State constituencies at the senatorial headquarters, Umuahia on 21st August, 1983, your petitioner won the said election by scoring 159,988 votes as against 138,104 votes as scored by the first respondent.

(ii) That the number of votes your petitioner scored over and above the first respondent was 21,884 votes. The relevant declaration of results by the 20 assistant returning officers duly signed by them and the agents of the political parties shall be relied upon at the trial.

(iii) That the first respondent was at the time of the election not duly elected by majority of lawful votes at the said election.

4. That the third respondent duly received the declaration of results from the twenty state constituencies at the senatorial headquarters, Umuahia by 12.30 p.m. of 21st August, 1983 and the party agents present were allowed by him to copy down the said results for totalling while he also copied down the results for totalling. These results agreed with the declaration of results, Forms EC8 given to the political agents in respect of the twenty State Constituencies by the assistant returning officers after being duly signed by the respective assistant returning officers. These may be founded upon at the trial.

6.

(i) ... Third respondent carried all the results from the twenty State constituencies and boarded the said Land Rover and drove away to Owerri.

7.

(ii) The third respondent was quickly followed and at Owerri he first spent an hour in the Commissioner of Police’s office and another hour in the office of the Imo State Resident Electoral Commissioner where it was reliably learnt that the first respondent was already waiting. Your petitioner begged to be allowed into the office of the Police Commissioner and the Resident Federal Electoral Commissioner at the time the third respondent was dealing with them over the said results but both Commissioners bluntly refused to see your petitioner.

(iii) That the third respondent returned again to the Commissioner of Police and spent another 45 minutes in the Commissioner’s office and from there, third respondent under heavy police escort returned to Umuahia police station where he spent another 45 minutes. There he was confronted by your petitioner and the third respondent said ‘Dr., play it easily lest you be hurt. Higher forces are at work. The situation is not of my making.’

8. That the third respondent was escorted to the senatorial headquarters, Umuahia at about 7.35 p.m. under heavy police escort...

9.

(i) That your petitioner in company of one of his agents Mr. Kalu Uko went into the senatorial headquarters and confronted the third respondent to add up the results and announce the same. The third respondent produced a piece of paper (Form EC8) already written up with a falsified result and said ‘As you can see, this is not of my making, this is what they asked me to announce and as you can see they said Chief Chris Ukpabi won the election’.

(ii) That your petitioner’s agent, Mr. Kalu Uko took the copy of the falsified election result from the third respondent and demanded to know who the ‘higher forces’ are that instructed the third respondent to read a result he knew was false, but the third respondent would not answer... The said copy of falsified declaration of result Form EC8 will be founded upon at the trial.

10. (i) That on 22nd August, 1983, your petitioner heard over Imo State Radio Nigeria that the first respondent was announced by the third respondent as the winner of the election, falsely crediting him with 172,071 as against 138,104 votes which he actually scored thereby inflating the votes scored by first respondent by 37,967 votes

(ii) That the actual scores of lawful votes for the various candidates (including votes cast for P.R.P. which did not field any candidate) were as follows:

1. M.B. Ukpabi (G.N.P.P.) 3,053 i.e. 0.98% of votes cast

2. Dr. E. Owoh (N.A.P.) 3,451 i.e. 1.11% of votes cast

3. Chief Chris Ukpabi (N.P.N.) 138,104 i.e. 44.47% of votes cast

4. Dr. T.U. Torti (N.P.P.) 159,988 i.e. 51.52% of votes cast

5. Mr. Ngwaba (U.P.N.) 4,205 i.e. 1.34% of votes cast

6. (P.R.P.)... 1,701 i.e. 0.54% of votes cast

(iii) ….

(iv) That the petitioner scored the highest number of votes at the said election of 20th August 1983 and also secured more than 25% of the votes cast in each of the twenty State constituencies.

12. Wherefore your petitioner prays that it may be determined that the said Chief Chris Ukpabi was not duly elected or returned and that your petitioner the said Dr. Torti Ufere Torti was duly elected and ought to have been returned and that this Honourable Court do hereby return the petitioner as duly elected and returned.”

The respondents filed their replies and the issues joined came up for hearing before the election panel of the High Court of Imo State consisting of Amadi–Obi J., Chairman, Ononuju, J. member; and Alilionwu, J. member.

After hearing the evidence and the addresses of counsel for the parties, the election panel of the High Court delivered a well considered judgment wherein the learned judges observed, found and concluded as follows:

“From the evidence before it, the court is satisfied and finds as a fact that exhibits A to A19 are the genuine result sheets for the State constituencies in the Umuahia senatorial district election of 20th August, 1983. But we have to observe that exhibit A4 and exhibit C are one and the same result for Nkporo State constituency except that it would appear that exhibit C is the genuine result sheet although it contains identical figures with Ex. A4.

But the court must observe at this juncture that counsel for the first and third respondents in their addresses attacked the admissibility of the exhibits on the ground that they are not originals. It is the view of this Court that the objection is not tenable because

(a) those who made and signed them identified them

(b) they were FEDECO result sheet forms completed and fully signed by FEDECO officials.

They were the makers and identified them. It is the view of the court that those exhibits A to A19 and exhibit C are primary documentary evidence having been executed in several parts particularly as the third respondent in his evidence said that they were all FEDECO forms and none could be said to be the original. See section 93 (2) of the Evidence Law and they therefore can be tendered under section 95 of the Evidence Law.

Furthermore the petitioner served on both the second and third respondents notices to produce those documents but they failed to do so that if even the documents were copies they could be tendered under section 97 of the Evidence Law.

From the evidence before the court and the figures given in evidence, these are the figures for both the petitioner and the respondent obtained from exhibits A to A19 and exhibit C, the petitioner scored a total of 159,988 lawful votes including votes from Abriba constituency while the first respondent scored 138,104 lawful votes cast including votes from Abriba State constituency. From the foregoing, it is clear that the petitioner scored the highest number of lawful votes cast. On the other hand, if votes from Abriba constituency are excluded, the petitioner scored 153,838 lawful votes cast as against 132,071 lawful votes scored by the first respondent. Here too, the petitioner scored the highest number of lawful votes cast. The Court condemns the third respondent in not including Abriba votes although in his own admission he did so even though they arrived before declaring the results. He has no lawful authority to do so. This court rejects exhibit M as it has no place in the Electoral Act of 1982 and it has not been identified by those alleged to have signed it. The court cannot help feeling that exhibit M was entered to enhance the perpetration of the falsification of the figures. The court has examined exhibits A to A19, and exhibit C and compared them with the entries made in exhibit M and found out that all the entries made in exhibit M agree with the figures shown in exhibits A to A19 and exhibit C except in the cases of exhibit A1 for Olokoro/Ubakala State constituency exhibit A9 for Ohuhu/Umuokpara State constituency and exhibit A11 for Ishiagu State constituency. In exhibit A1, the figure for the N.P.N. showed 6,535 while in exhibit M it shows the N.P.N. scores as 16,535. This figure, in our view, was obtained by inserting the figure ‘1’ before the figure ‘6’ in 6,535. In exhibit A9 the figure for the N.P.N. is 11,561. But in exhibit M it shows the N.P.N. scored 21,561. This figure in our view was obtained by inflating the figure by 10,000 by changing the first figure ‘1’ to ‘2’ in 11,561. In exhibit A11, the figure for N.P.N. is 2,337. But in exhibit M the figure for the N.P.N. is 22,337. This figure in our view was obtained by inflating the total figure by 20,000 by inserting the figure ‘2’ before the figure ‘2’ in 2,337. It is therefore obvious that the number of votes credited to the respondent the N.P.N. candidate was inflated by a total votes of 40,000 and from the totality of the evidence we so find. The court therefore finds as a fact that exhibit B is a false document. It is significant to note that in exhibit B the total number of votes cast is shown to be 341,461 but if the total votes ascribed to all the candidates in exhibit B is added it comes to 337,771. Even if the invalid votes as shown on exhibit M as 4,229 is deducted from 341,461, the balance will not be 337,771 but 337,232…

In conclusion, the court finds that the petitioner has proved his case and is entitled to judgment.”

Aggrieved by this decision, the first respondent appealed to the Federal Court of Appeal. The second and third respondents did not appeal against the decision. Seven grounds of appeal were filed. Ground 1 complained against the payment of N5,000.00 as security by the petitioner on the 23rd day of August, 1983 before the court made the order to deposit the amount. This order was made on the 7th day of September, 1983.

Ground 2 complained against the admission of exhibits A, A1 to A19. The ground contended that they were inadmissible and that the court was in error in treating them as primary documentary evidence and admissible. Ground 3 complained that the learned trial Judges were in error in admitting exhibit K and basing their judgment thereon and finding that the lawful votes cast for first respondent was inflated by 40,000.

Ground 4 complained of the error of the learned trial Judges in rejecting exhibit M. The appellant contended that exhibit M was relevant and admissible.

Ground 5 complained that the evidence of the petitioner and his first witness was a variance with the pleadings in paragraphs 4, 5, 6, 7 (i), (ii) and (iii) of the petition and contended that the learned trial Judges should not have made use of the said evidence and should have rejected or expunged it.

Ground 6 complained that the petitioner failed to prove the allegation of falsification beyond reasonable doubt. Ground 7 reads: “The judgment is against the weight of evidence.” The grounds of appeal in extenso read:

1. Error–In–Law–&–Misdirection: The learned trial justices of the court erred in law and misdirected themselves in law in the following portions of their judgment:

“It is our view therefore that the court can regularise the proceedings by making the order suo motu particularly as the petitioner has shown his seriousness and earnest by depositing the security before filing the petition even before being ordered to do so.

It is just to make an order and we hereby order that the deposit of N5,000.00 made by the petitioner on 23rd August, 1983 be deemed to have been made pursuant to the order of court made on 7th September, 1983.”

and thereby reached an erroneous conclusion that the petitioner complied with section 127 (1) of the Electoral Act, 1982 which conclusion has worked injustice to the first respondent/appellant.

PARTICULARS

2. Error–in–Law–&–Misdirection: The learned trial Judges of the court erred in law and misdirected themselves in law in receiving in evidence exhibits A, A1 to A19 which are inadmissible and relying thereon and thereby reached erroneous conclusions as per the following portion of the judgment:

“It is the view of the court that those exhibits A to A19 to Ex. C are primary documentary evidence having been executed in several parts particularly as the third respondent in this evidence said that they were all FEDECO forms and none could be said to be the original.”

PARTICULARS

3. Error–In–Law–&–Misdirection: The learned trial Judges of the court were clearly in error in admitting exhibit K and basing their judgment thereon and came to the conclusion that the lawful votes cast for the first respondent were inflated by 40,000 even though the petitioner was not one of those contemplated in section 137 (i) of the Electoral Act, 1982.

4. In holding as follows:

“This court rejects Ex. ‘M’ as it has no place in the Electoral Act, of 1982 and it has not been identified by those alleged to have signed it. The court cannot help feeling that exhibit ‘M’ was intended to enhance the perpetration of the falsification of the figures.”

the learned trial Judges of the court erred in law in rejecting the said exhibit which was relevant and legally admissible and based their conclusions on speculation.

PARTICULARS

5. Error–In–Law–&–Misdirection: Because the evidence of the petitioner and his first witness was at variance with the averments in paragraphs 4, 5, 6 and 7 (i), (ii) and (iii) of the petition, the learned trial Judges of the court were in error in making use of the said evidence which went to no issue and ought to be disregarded.

6. The learned trial Judges of the court were clearly in error in entering judgment for the petitioner who has failed to prove his allegations of falsification of results beyond reasonable doubt as required by law.

7. The judgment is against the weight of evidence.

Counsel for the parties filed briefs of argument and were also given an oral hearing by the Federal Court of Appeal. At the conclusion of the hearing the Federal Court of Appeal allowed the appeal on all the grounds but one and dismissed the petition.

Belgore, J.C.A. delivering the lead judgment with which the other Justices concurred said inter alia.

“The petitioner paid the security of N5,000.00 which he knew before hand and armed himself with the receipt filed his petition of 24th August, 1983 well within time to file petition. What the court purports to do on 7th September, 1983 was a surplus age as the security had been fixed by rule of court... This ground therefore fails.

As for the allegation of falsification of results the learned trial Judges in the election court erred...

The documents exhibits A, A1 to A19 are copies by virtue of section 70(b) of the Act, the original is the one sent to Commission by virtue of sub-section (d) thereof. Section 72(1) mentions the proper custody of the returns after being announced and sub-section 3 thereof shows how they can be produced... Falsification of results is a criminal offence punishable under section 105 (i) (e) of the Electoral Act. The only proof is what can be made of exhibits A, A1 to A19 which are secondary evidence and in the absence of proof of destruction or unavailability of the original and circumstances under section 96 Evidence Act,... are therefore wrongly admitted. The election court acted on them heavily to decide the fate of the petition and never adverted its mind to imputation of crime which by virtue of section 137 (1) Evidence Act must be proved beyond reasonable doubt. The proof here even falls short of preponderance of doubt. The case of the petitioner is no more than a great doubt which in law will be resolved in favour of the respondent... The total effect is that I allow this appeal and set aside the decision of the election court sitting at Umuahia on 17th September, 1983. I hereby affirm the return of the first appellant as the senator elect for Umuahia senatorial district. He is therefore the person duly elected and returned in the election.”

Against this decision, the appellant appealed to this Court on the following grounds:

(1) Error in Law: The learned appeal justices of the court below erred in law when they held that the standard of proof needed to establish the petition against the first respondent/respondent was (proof) beyond reasonable doubt.

PARTICULARS

(2) Error in Law: The learned appeal justices erred in law by holding that the case of falsification of results (which was alleged only against the third respondent who did not appeal) was not proved beyond reasonable doubt and by applying the same standard in the case of the first respondent/respondent against whom no falsification of results was alleged.

PARTICULARS

(a) The only appeal being considered by the lower court was that lodged by the first respondent/respondent as second and third respondents never appealed against the decision of the trial court.

(b)

(c)

(d)

(3) Error in Law: The lower court erred in law by holding that the result sheets exhibits A, A1 to A19 were secondary evidence hence they erroneously came to the conclusion that they were not enough to establish the petitioner’s case beyond reasonable doubt.

PARTICULARS

(a)

(b)

(c)

(d)

(4) Error in Law: That the lower court erred in law by failing to appreciate that even if the documents exhibit A, A1 to A19 were held to be secondary evidence, enough foundation was laid for their admission in evidence.

PARTICULARS

The issues for determination in this appeal may be summarised as follows:

(1) Are exhibits A, A1 to A19 to C admissible and were they properly admitted?

(2) Was the standard of proof required to establish the petition or the facts alleged in the petition against the first respondent/respondent one of proof beyond reasonable doubt or one of preponderance of evidence?

(3) Was it proper for the first respondent to have raised the issue of falsification in the Federal Court of Appeal when no allegation of falsification was made against him either in the petition or in the evidence before the trial court when the third respondent against whom the issue was raised did not appeal?

(4) On the evidence accepted by the trial court did the appellant have a majority of votes entitling him to be declared duly elected or returned as senator for the Umuahia senatorial district?

Chief F.R.A. Williams, S.A.N., who appeared for the appellant stated the questions raised for determination in this appeal as follows:

(1) whether exhibits A, A1 to A19 and C were admissible as primary evidence?

(2) whether the Federal Court of Appeal was right in holding that the standard of proof required to establish the petition or grounds of the petition was not satisfied in this case? and

(3) whether the petitioner has successfully established the facts and grounds on which he relies for his prayer.

On the issue of admissibility, the learned Counsel for the appellant submitted that, having regard to the fact that exhibits A, A1 to A19 and C were certificates of results completed, signed and issued by the assistant returning officers and delivered by them to the appellant or his agent, they are admissible as primary evidence and cited in support of the recent case of Nwobodo v. Onoh SC.96 1983 delivered on the 8th day of October, 1983. He contended that since the assistant returning officers were called to testify and they identified and confirmed the issue of the exhibits by them the question of who tendered them became irrelevant. He then cited in support of his contention the case of Rex v. Adebanjo 2 WACA 315 at 321.

On the issue of the standard of proof, learned Counsel submitted that the Federal Court of Appeal was in error to hold that the requirement was proof beyond reasonable doubt as required by section 137 (1) of the Evidence Act. Learned counsel contended that section 137 (1) Evidence Act applies only where allegation of crime against a party to the proceedings is directly in issue in any civil proceeding. The requirement does not arise where the allegation of crime is only collaterally in issue. Counsel then referred the court to the two authorities he relied on. They are:

(1) Ikoku v. Obi (1962) A11 NLR 194 at 199

(2) Nwankwere v. Adewunmi (1966) 1 A11 NLR 129 at 132.

He contended that the appellant was entitled to succeed when he proved he received a majority of lawful votes as against the first respondent and other contestants. This entitlement does not depend on proving the crime of falsification. He contended that what concerns the court most is justice or to see that justice is done and that the person who lost is not made to occupy the senatorial seat. He then referred to the dictum of Idigbe, J.S.C., in the case of Okeowo & Ors. v. Migliore & Ors. (1979) 11 S.C. 138 at 197.

Counsel then dealt with the relevance of proper custody of documents and its effect on the issue of admissibility. Learned counsel was of the opinion that the issue of proper custody was not relevant when dealing with the admissibility of a document. It is only relevant on the issue of weight, according to learned Counsel’s submission. Counsel then referred to the cases of

(1) Ogbunyiya v. Okudo (1979) LRN. 318

(2) Kuruma v. The Queen (1955) AC 197

(3) Sadu and Yaro v. The State (1968) 1 All NLR 124 at 129–130 to support this contention.

Dr. Odje, learned Counsel for first respondent, conceded that the documents exhibits A, A1 to A19 and C were admissible as primary evidence. He however disagreed with Chief Williams’ submission that the standard of proof required to establish the petition is not one of proof beyond reasonable doubt. He submitted that the standard required by section 137 (1) of the Evidence Act has to be satisfied. Professor Kasunmu’s submission followed closely Dr. Odje’s submission. He represented the second and third respondents.

I now proceed to consider the submissions of counsel on the issues for determination in this appeal.

Admissibility of Exhibits A, A1 to A19 and C

All counsel are agreed that in view of the recent decision of this Court in the case of Nwobodo v. Onoh SC.96 1983 decided on 8th October, 1983, exhibits A, A1 to A19 and C (certificate of results completed signed and delivered by the assistant returning officers appointed by FEDECO to collate the results) are admissible as primary evidence. The learned trial Judge was justified in so holding and properly admitted the result. Chief Williams invited this Court to consider the issue of proper custody and its effect on the issue of admissibility.

I am in agreement with counsel’s submission that where a document is admissible, the issue of proper custody is irrelevant to the issue of admissibility. I would state the principle in reverse, i.e. if a document is inadmissible, the fact of production from proper custody will not make it admissible. A document must be relevant to be admissible. Its production from proper custody goes to weight to be attached to the piece of evidence. If it is from proper custody, it is presumed to be genuine if evidence of execution and identity is not available. If this evidence of execution and identity is available, the evidence of proper custody adds nothing to the weight to be attached to the piece of evidence and if absent, cannot adversely affect the admissibility of the document. There is no general rule of law in civil as well as in criminal cases that evidence which is relevant is excluded merely by the way in which it has been obtained.

On this point, the Privy Council in the case of Kuruma, Son of Kaniu v. The Queen (1955) AC 197 at p. 203, observed

“In their Lordships’ opinion the test to be applied in considering whether evidence is admissible is whether it is relevant to the matter in issue. If it is, it is admissible and the court is not concerned with how the evidence is obtained. While this proposition may not have been stated in so many words in any English case, there are decisions which support it, and in their Lordships’ opinion it is plainly right in principle ... There can be no difference in principle for this purpose between a civil and a criminal case. No doubt in a criminal case a judge always has a discretion to disallow evidence if the strict rule of admissibility would operate unfairly against an accused.”

This statement of law was adopted with approval by this Court in the case of Sadau and Yaro v. The State (1968) 1 A11 NLR. 124 at p. 129-130. See also Ogbunyiya v. Okudo (1979) LRN 318 (1979) 6/9 SC.32 at 38-39.

Standard of Proof Required

On the issue of the standard of proof required to establish the petition, I find myself unable to accept the submission of the counsel for the respondents that proof of all the allegations in the petition must be beyond reasonable doubt to establish the petition. In other words, unless the facts are proved beyond reasonable doubt the petition must fail. This statement of the law is clearly erroneous and it is unfortunate that the Federal Court of Appeal fell into the error. There is a clear distinction between the general issue of who had the majority of lawful votes which was the main issue for determination and the collateral issue of (the offence of) falsification. The allegation of falsification was made against the third respondent in paragraph 9 of the petition already set out above. The words in quote “As you can see, this is not of my making, this is what they asked me to announce and as you can see they said Chief Chris Ukpabi won the election” coming out of the mouth of the assistant returning officer need no further interpretation.

The allegation of falsification was not made against the first respondent, Chief Chris Ukpabi and so no issue of falsification arose between them. The only issue that arose between them is whether he, the petitioner/appellant received the highest number or majority of lawful votes or the first respondent/respondent received the majority of lawful votes. The standard of proof required to resolve the issue is one of the balance of probabilities, the burden of proof being one arising in civil cases. See A. R. Mogaji & Ors. v. R. Odofin & Ors. (1978) 4 SC.91 at 93. See Chief Omoboriowo v. Chief Ajasin SC.98 1983 delivered on the 15th day of October 1983.

I therefore hold that the Federal Court of Appeal erred to have held that Section 137 (1) of the Evidence Act must be satisfied, i.e. the petition must be proved beyond reasonable doubt to succeed.

The Federal Court of Appeal also overlooked the fact that the third respondent against whom the allegation of falsification was made did not appeal against the decision of the High Court against him. The issue of falsification as an offence therefore did not arise for determination in the appeal.

These issues having been resolved in favour of the appellant, all the grounds of appeal succeed. The documentary evidence exhibits A, A1 to A19 and C having been restored had their probative value restored to the full. As they were accepted and believed they proved that the appellant had a majority of lawful votes cast at the election and ought to have been declared duly elected or returned.

For the above reasons, I allowed the appeal on the 2nd day of November, 1983 set aside the decision of the Federal Court of Appeal and restored the judgment of the High Court election panel (Amadi-Obi, J. (Chairman) Ononuju, J. (Member) and Alilionwu, J. (Member).

Aniagolu J.S.C. On 2nd November, 1983 we allowed this appeal, set aside the judgment of the Federal Court of Appeal on it and declared the petitioner the winner of the election into the Senate of the National Assembly for the Umuahia senatorial district. We reserved our reasons for the said judgment to today. I now give my reasons for my judgment.

The election complained of this in this appeal was the one for the Umuahia senatorial district held on Saturday the 20th day of August, 1983. Chief Chris Ukpabi (referred to hereafter as the first respondent) was declared elected by the Federal Electoral Commission (hereinafter referred to as FEDECO). Dr. Torti (referred to henceforward as the petitioner) petitioned against the first respondent’s return, to the High Court which decided in his favour. Upon an appeal against the judgment, by the first respondent, to the Court of Appeal, that Court set aside the judgment of the High Court and entered judgment for the first respondent. The appellant not satisfied with the judgment of the Court of Appeal appealed to this Court giving rise to these proceedings.

The complaint of the petitioner, who was a member of the Nigerian Peoples Party (N.P.P.), was that he had won the election by scoring 159,988 votes as against the first respondent who scored 138,104 votes. The position was altered, he swore, by the rigging of votes by the first respondent and his political Party, the National Party of Nigeria (N.P.N.). The following was his pleading in paragraph 3 (i), (ii), (iii) and (iv) of his petition:

“3.

(i) And your petitioner says that at the said election from the sum total results returned by the twenty assistant returning officers of the Federal Electoral Commission for the twenty State constituencies at the senatorial headquarters Umuahia on 21st August, 1983, your petitioner won the said election by scoring 159,988 votes as against 138,104 votes as scored by the first respondent.

(ii) That the number of votes your petitioner scored over and above the first respondent was 21,884 votes. The relevant Declaration of Results by the twenty assistant returning officers duly signed by them and the agents of the political parties shall be relied upon at the trial.

(iii) That the first respondent was at the time of the election not duly elected by majority of lawful votes at the said election.

(iv) That the first respondent is the person alleged to have been elected. Second respondent is the Federal Electoral Officer for Umuahia senatorial district who supervised the elections. The third respondent is a known part card bearer of the N.P.N. He is also the Zonal leader of the Okpara 1983 Victory for the N.P.N. campaign team for Ofema Ohuhu in the Umuhia senatorial district. He was appointed returning officer shortly before the election. Your petitioner shall contend at the trial that this was solely for the purpose of rigging the senatorial Election in favour of the N.P.N. his party. The document showing his position in the N.P.N. is hereby pleaded.”

The Federal Court of Appeal reversed the High Court judgment upon three principal reasons:

(a) Admissibility of exhibits A, A1 to A19;

(b) Quantum or standard of proof of falsification–whether beyond reasonable doubt or upon balance of probabilities, having regard to section 137 of the Evidence Act;

(c) Whether the petitioner had successfully established the facts and grounds on which he relied for his prayer.

The Court of Appeal, on admissibility, held that exhibits A, A1 to A19 were inadmissible and were improperly admitted in evidence by the trial court; that on the standard of proof of falsification of votes, the falsification should have been proved beyond reasonable doubt; and that generally the proof adduced by the appellant even fell “short of preponderance of doubt.” All that the appellant had succeeded in doing, the court said, was to cast “a great doubt which in law will be resolved in favour of the respondent.” In order to accurately pinpoint the reasoning of the court on the three issues, it is necessary to reproduce that portion of the judgment which specifically highlighted them:

“The documents admitted as Exhs. A, A1-A19 are copies by virtue of S.70 (b) of the Act, the original is the one sent to the Commission by virtue of sub-section (d) thereof. S.72 (1) mentions the proper custody of the returns after being announced and sub-section (3) thereof shows how they can be produced. Signed copies should not be confused with the documents executed by virtue of S.93 Evidence Act. The Electoral Act is a special animal among other legislations and the National Assembly has clearly provided therein how its documents could be produced for evidence. Exhs. A, A1-A19 may be and may not be what the polling agents received from assistant returning officers. There are even contradictions in the evidence of petitioner about the authenticity of some of them. Falsification of result is a criminal offence punishable under S.105 (1) (e) of the Electoral Act. The only proof is what can be made of exhibits A, A1-A19 which are secondary evidence and in the absence of proof of destruction or inavailability of the original and circumstances under S.96 Evidence Act … and are therefore wrongly admitted. The election court acted on them heavily to decide the fate of the petition and never adverted its mind to imputation of crime which by virtue of S.137 (1) Evidence Act must be proved beyond reasonable doubt. The proof here even falls short of preponderance of doubt. The case of the petitioner is no more than a great doubt which in law will be resolved in favour of respondent. In election petitions, once reliance is placed on commission of a criminal offence, it must be proved beyond reasonable doubt.”

Arguing the appeal, Chief Williams submitted that exhibits A, A1 to A19 were admissible by reason of the makers of the documents (who were assistant returning officers) having accepted (except in respect of A1 and A4) that they made the documents. Where the makers of the documents admitted making them, he argued, it was irrelevant who tendered them, and, therefore, the issue of proper custody became immaterial. Chief Williams submitted that of those twenty exhibits A, A1 to A19, the appellant was concerned with only three, namely:

Exhibit A1 which concerned OLOKORO/UBAKALA

Exhibit A9 which dealt with OHUHU/UMUOKPARA

Exhibit A11 which covered ISIAGU.

In respect of exhibit A1, the maker, alleged to be George Gabriel Ekwonye, was not called to testify but his assistant returning officer, Mackay Okezie Marcus Maduagwu (PW21), was called and he identified his signature and handwriting on the document (A1). He was in a position to, and did, know his signature and handwriting as both of them were teachers in the same school.

As respects exhibit A9, the maker of the document was said to be an assistant returning officer, one BEKE UKOGO, who had attended the hearing of the petition and later disappeared. A bench warrant was issued for his arrest. But Chief Godwin Akonyiri Chimaroke (PW22) swore that he knew Beke Ukogo; that he was present when the said Beke Ukogo wrote and signed exhibit A9. He identified his writing and signature. About exhibit A11, the maker of the document, one ROLAND AGUSIENDU ACHU (PW2)–an assistant returning officer (A.R.O.)–was called and he testified that he prepared and signed the document.

Having regard to all the evidence in respect of these exhibits, they were, in my view, admissible and were rightly admitted by the trial court, regard being had to the provisions of sections 100 to 106 of the Evidence Act.

An issue was made of the documents not coming from proper custody. It is to be remembered that the issue of proper custody when taken up in relation to admissibility of a document arises where a presumption is sought to be made dispensing with normal proof in respect thereof. I have in mind the presumption, for example, as provided for in section 115 of the Evidence Act.

Again, as was held in Kuruma v. The Queen (1955) A.C. 197, the test to be applied, both in civil and in criminal cases, in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how it was obtained. Although I must express reservation on the wideness of that proposition which seems to suggest that relevant evidential material which was obtained even by felonious means was admissible once it is shown to be relevant, I would subscribe generally to the view that relevant evidence which is produced before a court would be admitted by that court unless there is some compelling reason, based on some principle of law, dictating its exclusion. That case received consideration during the hearing of Musa Sadau and Another v. The State (1968) 1 All N.L.R. 124 in which about the same conclusion was arrived at.

Then it was argued by the respondents that having regard to the provisions of S.137 (1) of the Evidence Act the fact of falsification of votes was not proved beyond reasonable doubt. That sub-section reads:

“If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.”

Chief Williams argued, relying, among others, on the case of Godwin Nwankwere v. Joseph Adewunmi (1966) 1 All N.L.R. 129 that in interpreting that section a distinction must be drawn between the case where the commission of a crime by a party to the proceedings is directly in issue and a case in which it is not directly in issue but is collateral to matters directly in issue.

Section 137 (1) of the Evidence Act is, to my mind, sometimes a difficult section to apply in that it cuts into the well accepted principle that a civil case is proved on a balance of probabilities, and creates a notional semblance voire dire proceeding, within a civil proceeding, in which a proof beyond reasonable doubt, as required in a criminal trial, is interposed in a normal civil trial requiring only preponderance of proof on probabilities. Although the pane of this Court in Ikoku v. Obi (1962) 1 All N.L.R. 196 was divided in their opinions and the nature of the claim in that case is different from the claim in the present suit, yet the conclusion that it applies when “the commission of a crime by a party to any proceedings is directly in issue”, seems a reasonable one for the purposes of this case. Clearly, I am far more inclined to the view that a civil case is a civil case and that the standard of proof in a civil case remains constant in the sense that the standard of proof therein is one based on balance of probabilities. To raise it any higher is to do injury to litigants and to the evidence law.

Now, examining closely the evidence adduced by the appellant and his witnesses, particularly the detailed evidence of PW1 (Kalu Uko) which was accepted by the trial Judge as to what happened between the returning officer and the police, and studying the denials of the defence, the proof of the rigging of the election was abundant. The facts adduced in the said evidence do not require any further proof whether it is termed “beyond reasonable doubt” or “on balance of probabilities.”

Specifically on exhibits A1, A9 and A11, the inflation is to be discovered by a comparison of the figures in those exhibits–genuine figures–with those in exhibit M used for the final declaration of the results as follows:

 

         

Exhibit

Votes

State
Constituency

Exhibit M
figures

A1

NPN:

6535

OLOKORO/

NPN:

16535

 

NPP:

6224

UBAKALA

NPP:

6224

A9

NPN:

11561

OHUHU/

NPN:

21561

 

NPP:

8750

UMUOKPARA

NPP:

8750

A11

NPN:

2337

ISIAGU

NPN:

22337

 

NPP:

8462

 

NPP:

8462

Thus it will be seen that N.P.N. inflated its vote-figures in

OLOKORO/UBAKALA by 10,000

OHUHU/UMUOKPARA by 10,000

and ISIAGU by 20,000

The rigging is, in my view, too clear for words.

Accordingly, the appellant had to win because barring the inflation of the figures, he had the majority of the votes cast in the election. It was for the above reasons that I allowed the appeal, set aside the judgment of the Federal Court of Appeal and restored the judgment of the High Court.

Uwais J.S.C. We allowed this appeal on 2nd November, 1983 and reserved to today our reasons for doing so. I now give my reasons.

The facts of the case may be briefly stated as follows. In the election to the Senate which was conducted on 20th August, 1983, in Umuahia senatorial district the first respondent was declared duly elected. The appellant, who was also a contestant in the election, felt aggrieved. He filed a petition against the respondents in this appeal in the Imo State High Court, Umuahia. The following averments were part of the petition—

“3.

(i) And your petitioner says that at the said election from the sum total results returned by the twenty assistant returning officers of the Federal Electoral Commission for the twenty State constituencies at the Senatorial (District) headquarters Umuahia on 21st August, 1983 your petitioner won the said election by scoring 159,988 votes as against 138,104 votes as scored by the first respondent …

(iii) That the first respondent was at the time of the election not duly elected by majority of lawful votes at the said election.”

“7.

(i) That your petitioner shall lead evidence to show that at no time did the third respondent add up the results as required by the Electoral Act, 1982 ...”

“9.

(i) That your petitioner in company of one of his agents Mr. Kalu Uko went into the Senatorial (District) Headquarters and confronted the third respondent to add up the results and announce the same. Third respondent produced a piece of paper (Form EC8) already written up with a falsified result and said, ‘As you can see, this is not of my making, this is what they asked me to announce and as you can see they said Chief Chris Ukpabi won the election.’

(ii) That your petitioner’s agent Mr. Kalu Uko took the copy of the falsified result from the third respondent and demanded to know who the ‘Higher forces’ are that instructed the third respondent to read a result he knew was false, but third respondent would not answer …”

“10

(i) That on 22nd August, 1983 your petitioner heard over the Imo State Radio Nigeria that the first respondent was announced by third respondent as the winner of the election, falsely crediting him with 172,071 (votes) as against 138,104 votes which he actually scored, thereby inflating the votes scored by first respondent by 33,967 votes …”

(iii) The total votes cast including rejected votes were 313,752. Void votes (i.e. rejected) were 3,250. Total lawful votes cast at the election were 310,502. The additional votes falsely recorded for the first respondent by the third respondent were not votes lawfully cast at the said election and were therefore void and should be disregarded in coming to the true result of the said election …..

(v) That if is was really the Police Commissioner that instructed the third respondent to leave the addition of the votes and carry the result sheets to Owerri, then the police and whoever procured the acts complained of were co-actors in the efforts to falsify the results of the Umuahia senatorial election of 20/8/83. Your petitioner contends that any other result declaration forms EC8 produced by the respondents bearing figures other than the ones submitted by the assistant returning officers at the Senatorial Headquarters on 21/8/83 are fabricated by the respondents to cover their falsification of results. The said falsification of result by third respondent was reported to the police who referred petitioner to his civil remedy.” (Italics mine).

In their replies the first and third respondents denied these averments and stated that the votes scored at the election as announced over the Imo State Radio Nigeria were accurate.

At the hearing the appellant called evidence to prove the averments made in his petition. Copies of the returns made in respect of each of the 20 State constituencies which made up the senatorial district were put in evidence as exhibits A, A1 to A19 and C. These returns were issued to the appellants’ counting agents by the assistant returning officers for the State constituencies. The exhibits were so identified by the assistant returning officers. The trial court believed this evidence and found for the appellant and granted his prayer in the petition which reads:

“Wherefore your petitioner prays that it may be determined that the said Chief Chris Ukpabi was not duly elected or returned and that your petitioner the said Dr. Torti Ufere Torti was duly elected and ought to have been returned and that this Honourable Court do hereby return the petitioner as duly elected and returned.”

The first, second and third respondents appealed to the Federal Court of Appeal against the decision of the trial court. The appeal was allowed on the following grounds—

1. That the allegation of falsification of the election result made against the third respondent was not proved beyond reasonable doubt and

2. That exhibits A, A1-19 and C which the trial court relied upon for reaching its decision were copies by virtue of the provisions of section 70 sub-section (b) of the Electoral Act, 1982. They were therefore wrongly admitted in evidence.

This appeal is against that decision of the Federal Court of Appeal. Chief Williams, learned Senior Advocate, for the appellant stated that there are three main issues in the appeal. These are—

(a) Whether exhibits A, A1-A19 and C were admissible as primary evidence.

(b) Whether the Federal Court of Appeal was right in holding that the standard of proof required to establish the petition or the ground of the petition was not satisfied. And

(c) Whether the petitioner has successfully established the facts and grounds on which he relies for his prayer in the petition.

Chief Williams argued that exhibits A, A1-A19 were admissible as primary evidence since the makers of the exhibits were called as witnesses and they confirmed making them with the exception of exhibits A1 and A4. He cited in support of the argument our decision in Chief Nwobodo v. Chief Onoh suit No. SC. 96 1983 (unreported) reasons for judgment given on 6th January, 1984. I agree with the submission. The Federal Court of Appeal was in error to regard exhibits A, A1-A19 as secondary evidence. The expression “copy” in section 70 sub-section (b) of the Electoral Act, 1982 was not meant to apply to the admissibility of such documents under the Evidence Act. Since the exhibits were executed in many parts and signed by the assistant returning officers they are not copies or secondary evidence as provided under the Evidence Act, see Nwobodo’s case and Chief Omoboriowo & Anor. v. Chief Ajasin, suit No. SC. 98 1983 (unreported) reasons for judgment given on 6th January, 1984.

Arguing further, learned Counsel for the appellant said that the standard of proof in the case had been satisfied. He submitted that the provisions of section 137 sub-section (1) of the Evidence Act apply only where the allegation of crime made in the petition is directly in issue. And that the provisions do not apply where the allegation is only collaterally in issue. He said that there was no allegation of crime against any of the parties to the proceedings. He finally submitted that the appellant could succeed in the case if he was able to show that he had more votes than the first respondent.

In his reply, Dr. Odje, learned Senior Advocate for the first respondent argued that there are only two issues for determination in this appeal. These are—

(1) Whether or not the petitioner has by the averments in his petition proved the point directly in issue which is the allegation of crime against a party to the petition. If he did, had the question of standard of proof in relation to section 137 (1) of the Evidence Act been satisfied and

(2) Whether or not it is possible to apply the principle of severance to the allegation directly imputing the commission of crime against a party from other innocuous averments in the petition which are supported by evidence establishing proof on balance of probabilities.

Dr. Odje relied on the decision of this Court in Nwobodo’s case and Omoboriowo’s case (supra) for the answer to these questions. He argued that paragraphs 9, 10 and 11 of the appellant’s petition contain clear and direct allegations of falsification of figures and results made against the respondents. Learned Senior Advocate further contended that the trial court failed to advert its mind to the standard of proof required by section 137 sub-section (1) of the Evidence Act and for this reason the Federal Court of Appeal was right in allowing the appeal against the decision of the trial court.

Professor Kasumu, learned Senior Advocate for the second and third respondents associated himself with the submissions made on behalf of the first appellant by Dr. Odje.

It seems to me clear from the averments in paragraph 10 (iii) and (v) of the petition that the third respondent was specifically accused of falsifying the result. There had been of course no proof beyond reasonable doubt in the evidence produced by the appellant to show that the falsification of the result was made by the third respondent. What the evidence conclusively proved was that the result in exhibit M which was tendered by the third respondent as the authentic return was false. This, in my opinion, is short of the proof required under section 137 sub-section (1) of the Evidence Act. In fact paragraph 9 (i) of the petition which has been quoted above shows that the third respondent alleged that the falsification was made by some strangers to the petition, because it avers that the third respondent said “As you can see, this is not of my making, this is what they asked me to announce and as you can see they said Chief Chris Ukpabi won the election.”

In the absence of proof of the crime alleged against the third respondent, the question is: can the finding of the trial court be upheld? In other words, does the doctrine of severance as laid down in Arab Bank Ltd. v. Ross, (1952) 2 Q.B. 216 at p.229 and followed by this Court in Omoboriowo’s case apply to the present case? I think it does. It is clear from the averment in paragraph 3 of the petition, which is already quoted, that for the petition to succeed the appellant did not have to prove that the third respondent was responsible for making the falsification. The preponderance of evidence adduced by the appellant proved on the balance of probabilities that he was the successful candidate and that he should have been returned. This explains why the trial court was able to arrive at its conclusion even without considering the allegation of crime made against the third respondent.

It was for the foregoing reasons that I agreed on 2nd November, 1983 that the appeal should be allowed and the decision of the Federal Court of Appeal reversing the decision of the trial court should be set-aside. And I adopted the order as to costs as proposed by my learned brother Sowemimo, C.J.N.