Nammagi v. Akote: On whether oral evidence admissible to prove or discredit contents of document and resolution of conflict in documentary evidence. An insight into the decision of the Supreme Court therein. Citation: (2021) 3 NWLR PT. 1762 AT 170.

PARTIES IN FULL:
ABDULLAHI ADAMU NAMMAGI
V.
DR. HUSSAINI TABAGI AKOTE
ALL PROGRESSIVE CONGRESS
INDEPENDENT NATIONAL ELECTORAL COMMISSION

Courtesy: Moruff O. Balogun Esq.

Summary of Fact:
The 2nd respondent conducted its primary election on 6th October 2018 for the nomination of its candidate for Gbako State House of Assembly of Niger State for the 2019 general election. In the primary election contested by the appellant, the 1st respondent and others, the appellant claimed he emerged the winner having scored the highest number of 3,404 votes, which the 1st and 2nd respondents changed and fraudulently credited to the 1st respondent.

Aggrieved, the appellant sued the respondents at the Federal High Court, Minna to challenge the non-submission of his name by the 2nd respondent to the 3rd respondent.
At the trial, the parties tendered documents purporting to be collation of results for nine wards, summary result of the primary election of Gbako constituency and the 3rd respondent’s report on the conduct of the election, exhibits “E”, “J” and “G” respectively, which were conflicting and hostile one to another. However, exhibit “E” was tendered through the appellant, though not the maker. Exhibit “J was tendered through PW2 who stated that he signed his witness statement on oath before his legal practitioner. Exhibit “G” did not have the names and signatures of the 3rd respondent’s officials that monitored the election.

At the conclusion of the hearing, the trial court in its judgment found and held that the appellant failed to adduce evidence to prove beyond reasonable doubt that the 2nd respondent forged the result of the primary election.

The appellant’s appeal to the Court of Appeal was dismissed.
Still aggrieved, the appellant appealed to the Supreme Court.

Held: Unanimously dismissing the appeal.
The following issues were raised and determined by the Court of Appeal.

On Whether oral evidence admissible to prove or discredit contents of document and resolution of conflict in documentary evidence-
The court disallows leading oral evidence in proof of a document. A document tendered in court is the best proof of its contents and no oral evidence will be permitted to discredit the contents except in cases where fraud is pleaded. However, where there is conflict in documentary evidence before a court, oral evidence becomes necessary to reconcile the conflict as the court is not allowed to prefer one document to the other. Howbeit, where there is legal documentary evidence which can tilt the contradictory evidence one way or the other, the court will rely on same in resolving the contradiction in place of calling oral evidence, In the instant case, both parties tendered documents purporting to be collation of results for nine wards, summary result of APC Niger State primary election of Gbako constituency and Independent National Electoral Commission report, which were conflicting and hostile one to another. The resolution and settlement of the documentary conflicts and contradictions could only be by calling oral evidence.

On Probative value of document tendered without calling maker-
Documents produced by parties in evidence in course of hearing are to be tested in open court before the court can evaluate them to determine their relevance in the determination of the case upon which the documents are relied upon. For this reason, any document tendered from the bar without calling the maker thereof attracts no probative value in the absence of opportunity given to the other party to cross-examine for the purpose of testing its veracity. It is not every person that may qualify as a witness to resolve documentary conflicts. In the instant case, to prove exhibit “E”, the collated result of the primary election of the wards, the appellant testified and gave evidence. However, he was not the maker of the exhibit. On exhibit “G”, the Independent National Electoral Commission Report, aside the fact that the appellant was not the maker, the maker was not called to be cross-examined. These were loopholes in the appellant’s case.

On difference between admissibility of evidence and probative value of evidence-
Admissibility is based on relevance while probative value depends on relevance and proof. In effect, a piece of evidence has probative value if it tends to prove an issue. Furthermore, in estimating the value to be attached to a statement rendered admissible by the Evidence Act, regard must be had, inter alia, to all the circumstances from which any inference can reasonably be drawn to the accuracy or otherwise of the statement. In the instant case, the parties strenuously argued on the admissibility of exhibits “E”, “J” and “G”. However, it was actually the weight the trial court and the Court of Appeal attached to the documents that was in contention.
Since the documents were tendered and admitted in evidence, the issue of admissibility was out of place.

On Probative value of unsigned document-
An unsigned document is a worthless paper. A document which is not signed does not have any efficacy in law. The document is worthless and a worthless document cannot be efficacious. In the instant case, the appellant as PW1 stated that exhibit “G” was not filled and signed by the Independent National Electoral Commission. Therefore, the document was worthless.

On Validity of deposition sworn to by witness before his legal practitioner-
Per ABBA AJI, J.S.C.:
“This is by the way on exhibit J. It must be borne in mind that the said exhibit was tendered by PW2, who admittedly at page 453 of the 1st paragraph stated that 7 signed the witness statement on oath before my lawyer.’ Such evidence must therefore be discountenanced.

Per Niki Tobi, J.s.C. in Buhari v. INEC & Ors. (2008) 19 NWLR (Pt. 1120) 246; (2008) LPELR-814 (SC), stated the position of the law thus:
Section 83 of the Evidence Act, provides as follows:
“Sworn before a person on whose behalf the same is offered, or before his legal practitioner, or before a partner or clerk of his legal practitioner”
The provision is clear and unambiguous and appears to me that the word shall” is clearly mandatory. These depositions were made in favour of the petitioner, General Muhammadu Buhari. Mr. Ikeonu is no doubt a Notary Public, but he is also a legal practitioner representing General Muhammadu Buhari in this petition. He is, therefore, precluded from taking depositions which are in fact, affidavit evidence in this petition.
The resultant effect of this is that both exhibit J and the witness statement on oath of PW2 must be rejected and is hereby rejected.”

On attitude of appellate court to decision of trial court where right but based on wrong reasons-
An appellate court will not set aside the decision of a lower court that is right and not just merely because the lower court gave wrong reasons for the decision. The paramount consideration of the appellate court is whether the decision appealed is right and not necessarily whether the reasons therefor are right. In other words, the appellate court must base its decision on the correctness of the judgment appealed and not on the reasons therefor.

On meaning of fraud and duty on court to be careful in accepting its use by litigants-
Courts must be careful in the way they accept the use of the word “fraud” by litigants in proceedings before them. The word “fraud” is so elastic in meaning as to cover the commission of crime as well as incidents of mere impropriety. It is often loosely used to cover both situations. When an allegation of fraud is made, it would have to be supported by particulars. It is not unusual to allege fraud in civil cases without imputing any crime. However, where the allegation is heavy and criminal, the proof must be beyond reasonable doubt.

On standard of proof in civil cases and standard of proof of allegation of fraud-
Where there are competing claims and interests, the one with a better case shall prevail, if both are put on the scale of justice to see where the pendulum preponderates. This is by comparing the documents relied upon to see which speaks better truth than the other. However, where the issue borders on fraud or forgery or change of election result or whichever language or term is used, it is criminal and must be proved beyond reasonable doubt. In the instant case, both the trial court and the court of Appeal considered dispassionately and meticulously the heavy allegation of the appellant against the respondents by placing side by side the documents available and came up with concurrent findings that the appellant had not proved his case to give him judgment.

Courtesy:
Moruff O. Balogun Esq.
Ijebu Ode, Ogun State.
08052871414