NIGERIANS are keenly following the ongoing petitions at the Presidential Election Petition Tribunal (hereinafter referred to as PEPT) by both the Labour Party (LP), the People’s Democratic Party (PDP), and their respective presidential candidates.
This is largely due to the massive participation of new young voters in the recent 2023 presidential election, which ushered in President Bola Ahmed Tinubu as the incumbent president of the Federal Republic of Nigeria.
The trial commenced at. PEPT on May 30, 2023, with the petitioners leading evidence in support of their respective petitions, by calling witnesses and tendering documents.
The petitioners have been tendering several documents from the Bar. The law permits lawyers to tender documentary evidence in a specified circumstance. So, although documentary evidence should ordinarily be tendered through a witness, where a public document is relied upon, a copy of the document certified by a public officer may be tendered by a lawyer from the Bar.
Where the documents are voluminous however it is important to guide the court in order that courts do not reject the documents on the grounds that they were simply dumped on the court. In the course of tendering documents by the petitioners, Kemi Pinheiro SAN. counsel representing the Independent National Electoral Commission (INEC), has repeatedly objected to the admissibility of these documents.
He indicates to the Tribunal that at the appropriate time, he will offer the reasons for his objection. This objection is taken even though the documents had been initially given to the petitioner by INEC. The same document had been verified by an officer of INEC, for the purpose of the litigation. A substantial part of these documents are results sheets created by officials of INEC.
These results sheets are catalogued in alphabetic series as follows: EC8A, EC8B, EC8C, and EC8D. The A series records the results and other particulars established at the polling unit. The B series records the collation of results at the ward level.
The C, and D, series record collation at the local government level, and state levels respectively, EC8E is the final result sheet recording the presidential elections. These documents were created by INEC officers (Public officers). They are stored in the custody of INEC
What is Certification in law?
As stated earlier, a petitioner intending to rely on any of INEC’s records will apply and an officer of INEC is statutorily obliged to deliver a copy to the petitioner. This copy must be compared with the original and certified that the contents of the copy are identical to the original.
Certification is simply the process by which a public officer verifies the content of a document. He certifies that the photocopy is identical to the original. Once the officer is satisfied (after the comparison) he indicates, by signing and dating the document.
The process is further authenticated by issuing an official stamp and stating ex- pressly that the photocopy is a true copy of the original. It is simply a verification process.
How is a document duly certified?
A document is legally certified when it is shown to have satisfied the following criteria:
a. The certification was paid for.
b. A certificate is written at the foot of that copy that it is a true copy of such document or part thereof.
c. The date when the certification was made
d. The name and the official title of the certifying office,
e. Where the use of a seal is authorized, the affixing of a seal on the document.
Courts have been known to treat this mechanical process as inviolable and sacrosanct. So, if any of the steps in the verification process is defective, the court might reject the document. This might constitute part of the reason why counsel to INEC may have registered a notice of objection.
These objections are taken even though the truth of the content of the documents is not disputed. So. for instance, if the document is not dated or signed, the court might refuse to admit the document in evidence. It will ordinarily be contented that there is a lack of compliance.
However, in such instances, the court may direct that the improperly certified document be taken for proper certification before same can be admitted in evidence. The court ought not to reject the document outright. Accordingly, any of such objections is an irregularity that can be cured.
Admissibility of Public Documents. The primary legislation which governs the admissibility of documents and evidence generally in Nigeria is the Evidence Act, of 2011. The position of the Law is that the only admissible secondary evidence of a public document is a certified true copy of the document. A photocopy of a public document (without certification) will not be admitted.
Even where the original is missing, the document can therefore never be certified. The court will still not admit a copy. The court has also maintained that the philosophy behind certification is authentication.
The anomaly of the INEC’S objections to its certified documents:
Once a public document is certified as required by the law, it is presumed to be genuine and regular, unless proven otherwise. There is a presumption that the document had been produced through a regular process. Accordingly, the contents of the photocopy are treated as will the original.
It, therefore, appears strange for INEC to object to the admissibility of its own certified documents tendered in the ongoing presidential election petition, where on the face of the documents, they were duly certified in accordance with the dictates of the Law.
It is worthy of note that when INEC objects to the admissibility of documents, it is not challenging the truth of the contents of the photocopied documents. INEC is simply alleging a failure to comply with mechanical steps for certification as prescribed by the Evidence Act.
Legal precedent appears to have been established that compliance with the evidence act must be strict and all-embracing. However, there seems to be some distinction where the public authority (INEC) as in this case is a Party in the action.
The party can always be compelled to comply with the provisions of the Evidence Act. For instance, if the document is not dated, the party in the proceeding can be invited to date the document and cure any anomaly. That will meet- more the justice of the case, rather than rejecting the document outright, to decide otherwise is to elevate technicality over substance.
A public office that issues a certified document ought not to be permitted to turn around to urge the court to reject the same document. It is preposterous to contend that the public office itself had not complied with the provision of the evidence act. The fact that strict mechanical pro- cess was not complied with. ought not to be a sufficient reason to reject the documents.
On a final note. It is worthy of mention that the ad- mission of any document in evidence by the court is distinct from the weight to be ascribed to it by the court.. In other words, it doesn’t re- ally matter that a document is admitted in evidence, it is the court that has the discretion to ascribe probative value to same.
Flowing from the foregoing, although the reasons for INEC’s Objection to its certified documents are still unknown as parties reserved their reasons for a later date, INEC should immediately be asked to state its reasons. Where any of the reasons relate to anomalies that can easily be cured, then it should be rectified.