By Essien Ndueso, Abuja

It is no longer news that the Petitioners Nsima Ekere and his Party All Progressives Congress, APC have vowed not to rest on their oars until the exhaust all options in the litigation ladder after losing woefully to Governor Udom Emmanuel of the Peoples Democratic Party, PDP in the March 9, 2019 governorship elections in Akwa Ibom State, as well as in the lower tribunal and the court of Appeal respectively.

A minor error of non payment of legal fees for Exhibits, and failure to provide certification on the Exhibits have posed a grave danger to their case at all levels of litigations.

One of their grounds of appeal before the apex court is whether the learned Justices of the Court of Appeal were correct when they sustained the decision of the Tribunal rejecting Appellants’ Exhibits on the ground that they were not duly certified.

The rejected documents on which the Appellants’ complaint is founded as Grounds 1and 2 rightly identified by the Court of Appeal are Exhibits PT1-PT2331 (Voters Register), Exhibits PTAI -PTA2275 (Forms EC8A), Exhibits PTB1 – PTB275 (Forms BCSB), Exhibits PTCI – PTC28 (Forms EC8C), Exhibit PTDI (Form EC8D), Exhibit P’TE1 (Form EC8E), Exhibits PTF1 – PTFA (INEC Manual and Guidelines for Conduct of 2019 Elections and Directory of Polling Units-in Akwa Ibom State. Exhibit PTF4 (Summary of PVC collected and uncollected), Exhibit PTG1 – PTG19 (EC40G).

Further, Exhibits PTH85 and PTH85A were photocopies of the purported receipts said to have represented payments made for the certification of the aforesaid documents.

In rejecting the documents listed above, the Tribunal as upheld by the Court of Appeal held that the documents were not certified in compliance with the provision of Section 104 of the extant Evidence Act.

It also held that the evidence of payment were not disclosed. It is same position of Exhibits PTAI- PTAZ2275, PTB1-PTB275, PTCI-PTC28, PTD; PTF1 PTF4 and PTG1-PTG19

“We are of the view that a document may only be properly called certified true copy of a Public Document if in addition to the payment of Legal Fees prescribed, it carries with it a certificate written at the foot of such copy that it is a true copy, dated and subscribed by the officer with his name and official title”. See EMEKA v. CHUBA-IKPEAZU (2017) LPELR 41920 (SC).

“In the result Exhibits PTI-PT2331; PTAI- PTA2275; PTBI-PTB275, PTC1 – PTC28; PTDI; PTEl – PTF1- PTF4 and PTGI-PTG19 are hereby discountenanced.”

Another grave undoing of the APC, which is apparently unknown to their teaming supporters in Uyo, is that these Exhibits were neither linked nor demonstrated through their witnesses and were not linked to any aspect of their case.

Similarly, Exhibits PTH30 – PTH55 and PTH56-PTH66 were not demonstrated by any of the witnesses.

The gross negligence of the APC in turning the courtroom to a refuse site, could not be appreciated by the judges at the lower court, as well as the justices of the appellate court. Even a layman knows very clearly in law that documents are not to be dumped on the court without them being demonstrated and explained before the court by witnesses who are competent to answer any questions on them.

Beyond tendering the documents from the bar, the need for them to be demonstrated and tested is of paramount importance. It was therefore not difficult for the Appeal Court justices to agree with the lower courts judges that the documents were dumped because they were not tested and demonstrated in open court.

The Lower Tribunal also rightly discountenanced some of the documents because they were not properly certified. It is trite law that copies of public documents are to be mandatorily certified before they can be admitted as Exhibits. The payment of legally prescribed Fees is an essential requirement such certification.

Thus the centrepiece of the decision of the Tribunal as well as the Court of Appeal was that the Exhibits were not ultimately available for the due consideration of the Tribunal and by extension the Court of Appeal, not having been demonstrated by competent witnesses at the trial. The issue of undue certification was essentially secondary and thus cannot be the arrowhead of a competent attack of the decision of both courts below.

In all their submissions, the Appellants could not submit that the documents bore endorsement of payment on them.

As presented by the 1st Respondent, “the most essential prerequisite of certification is the evidence that payment was made to the custodian of the document before the exercise of the mandatory duty of affixing the other requirements including the name and signature of the certifying officer. This is borne out by Sections 104 and 105 of the Evidence Act 2011”

A glimpse at that section of the Act provides that

“(1)Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees prescribed in that respect, together with a certificate written at the foot of such copy that it is a true copy of such document or part of it as the case may be.

“(2) The certificate mentioned in subsection (1) of this section shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified true copies.”

Did the APC and its candidate meet the two preconditions for admissibility of public documents, (ie) payment of the prescribed fees and certification in accordance with the provisions of Section 104 of Evidence Act, 2011? Your guess is as good as mine.

It is on this premises that the 1st Respondent reasoned that “the Tribunal was, therefore, right when it found as quoted above in the judgment at page 5263, Volume 7 of the Record of Appeal. The Court of Appeal was equally right to have sustained the decision.”

However this only leads further to the next position of Mr Nsima Ekere who challenged the decision of the two lower courts by maintaining that he rightfully observed all needed procedures in obtaining those exhibits, and in the same breath went on to plead that the court should rather order him to go and pay the legal fees where no payment was made, instead of rejecting the documents.

Not only is this laughable, but rather contradictory, as the respondents had asked, “that Appellants brazenly insisted that the documents were duly certified, even in the face of the clear fact that no indication of payment was made on the Exhibits. On what basis then will the Tribunal compel them to make payment when they insisted that their documents were regular? They, therefore, never urged the Tribunal to make that order.”

On the Appellants’ contendment that Exhibits PTH85 and PTH85A were photocopies of the receipt evidencing payment for the Exhibits, it was the argument of Governor Udom Emmanuel counsel that those purported photocopies of receipts were public documents and ought to have been certified.

“The Appellants never tendered the original of receipts issued to them by INEC. The essence of insisting that such documents meet the certification requirement is to prevent fraud. The Appellants ought to have approached the 3rd Respondent for certified copies of Exhibits PTH85 and PTH85A.”

In this light, was the Tribunal and the Court of Appeal right when they ruled that the certified true copy is the only evidence in proof of the assertion that the certifications were done by the 3rd Respondent?

Having noted these concerns, one is tempted to ask if the Appellants are at the Supreme Court to obtain an order for payment for the documents which they could have simply done earlier as law abiding people? Even if such wishes are granted by the apex court, of what benefit will it make to their case, which was described by the Appellate Court as a decomposing corpse?

This is because the said Exhibits had already been adjudged to have been dumped at the tribunal, having not been demonstrated by any witness? This makes the grounds of this appeal to be mute and worthy of no other purpose than an academic exercise.

As explained by the Respondents, “A suit is academic where it is merely theoretical, makes empty sound, and of no practical utilitarian value to the Plaintiff even if judgment is given in his favour.