Dr. Torti Ufere Torti V Chief Chris Ukpabi & Ors. (1984)
LawGlobal-Hub Lead Judgment Report
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 1st 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:
NPN (Ukpabi) 172,071
NPP (Torti) 153,832
thus the NPN had a majority of 18, 239.
In this case the appellant disputed only three constituencies to wit –
(i) Olokoro/Ubakala – wherein Fedeco recorded the NPN as having scored 16535 and the NPP 6224. Whereas according to the contention of the appellant the NPN scored 6535 and not 16,535. In this, appellant complained of an inflation of 10,000 votes.
(ii) Ohuhu/Umuopara. Here, Fedeco recorded the NPN as having scored 20 21,561 as against the NPP 8,750. The complaint here is that Fedeco inflated the NPN figures by 10,000.
(iii) Isiazu. Fedeco recorded 22,337 for the NPN and 8,462 for the NPP. The appellant contended that Fedeco has inflated the figures by 20,000 votes.
The sum total of this is that the appellant contended that there has been an inflation of 40,000 in favour of the NPN. How was it done The appellant contended that the Fedeco employed a most simplistic figure “1” in front of the score of the NPN 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 30 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 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, Ononuju and Alilionwu JJ., condemned in unmistakable terms the conduct of the police. The judqes 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 3rd 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 JJ.CA), 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.CA 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 3rd 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 3rd respondent wrongly returned the 1st respondent Chief Chris Ukpabi as being duly elected;
(b) that the petitioner scored 159,980 votes as against 138,104 votes scored by the 1st respondent at the election;
(c) that the 1st 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 case 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 3rd respondent to add up the results and announce the same. 3rd respondent produced a sheet 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”. 25
(ii) That your petitioner’s agent Mr. Kalu Uko (PW1) took the copy of the falsified election result from the 3rd respondent and demanded to know who the “Higher Forces” are that instructed the 3rd respondent to read a result he knew was false, but 3rd respondent would not 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 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.
Section 72 of the Act in subsections 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 subsection (d) thereof. S.72(1) mentions the proper custody of the returns after being announced and subsection (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 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 authenticity of some of them. Falsification of result is a criminal offence punishable under S.105(1 )(e) of 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 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 averted 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.”
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 allegation 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 agent Mr. Kalu Uko went into the senatorial headquarters and confronted the 3rd respondent to add up the results and announce the same. 3rd 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 3rd respondent and demanded to know who the ‘Higher forces’ are that instructed the 3rd respondent to read a result he knew was false, but 3rd 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 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 perpetration of the falsification of the figures. The court has examined Exs. 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. A11 for Ishiagu State constituency. In Ex. A1 the figure for the NPN showed 6,535 while in Ex. M it shows the NPN scores as 16,535. This figure in our view was obtained by inflating the figure by 10,000 by inserting the figure “1” before the figure “6” in 6535. In Ex. A9 the figure for the NPN is 11561. But in Ex. M it shows the NPN scored 21561. 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. A11, the figure for NPN is 2337. But in Ex. M the figure for the NPN 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 NPN 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 cast is shown to be 341461 but if the total 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 3rd 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 3rd 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 3rd 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 met the 3rd 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 3rd respondent and some collation going on. That was not part of my function. As I was there I saw a number of returning officers handing over their result sheets to the 3rd 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 a despatch book. The police officer gave the 3rd respondent the letter and asked him to sign his despatch book which he did. After opening the letter the 3rd respondent read it and handed it over to me and I read it and returned it to him. I then saw the 3rd 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 3rd respondent in Umuahia by the Federal Electoral Commission. It was the vehicle that the 3rd 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 10 in the election matters. When the 3rd respondent… wanted to go to Owerri there were some arguments as to whether he should go. At that junction the police surrounded the premises and escorted the 3rd 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 3rd 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 declared.”
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 1st 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 L.A.N. 318; 322. Kuruma v. The Queen (1955) A.C. 197, 203; Sadu Yaro v. The State (1968) 1 All N.L.A. 124; 129-130.
On this issue, Professor Kasunmu SA N. for the 2nd and 3rd 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 – A 19. 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 Commission by virtue of subsection (d) thereof. S.72(1) mentions the proper custody of the returns after being announced and subsection (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 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 authenticity of some of them.”
The Electoral Act 1982 provides in s.70 as 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 From EC.8 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 subsection (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 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) of the Act 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 multilated 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 multilated 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.
SC.109/1983
