The Nature of Admissibility of Documentary Evidence in Election Petitions: An Overview

By O. M. Atoyebi, SAN FCIArb.(U.K)

Contributor: Animasaun Iyanuoluwa

Introduction‘

Election petitions are fundamental to Nigeria’s democratic process, allowing candidates and political parties to challenge election results where irregularities or malpractices are suspected. The success of these petitions largely depends on the quality and admissibility of evidence presented before election tribunals. Among the various forms of evidence, documentary evidence plays a pivotal role in substantiating claims of non-compliance, fraud, or electoral misconduct.

What is Documentary Evidence?

The document “includes books, maps, plans, drawings, photographs and also includes any matter expressed or described upon any substance by means of letters, figures or marks or by more than one of these means, intended to be used or which may be used for the purpose of recording that matter^[1]. Documentary evidence refers to any document or recorded material presented in a legal proceeding to establish facts or support claims. It includes written, printed, or electronic records that serve as proof in a case. In election petitions, documentary evidence is crucial in proving allegations of electoral malpractice, non-compliance with electoral laws, or fraud.

The Legal Basis for Documentary Evidence in Election Petitions

The use of documentary evidence in election petitions is primarily governed by the Electoral Act 2022^[2], the Evidence Act 2011^[3], and relevant provisions of the 1999 Constitution of Nigeria (as amended). ^[4]According to Section 137 of the Electoral Act, petitioners bear the burden of proving electoral malpractice, and documentary evidence often forms the backbone of such proof.

The Evidence Act provides that the contents of a document may be proved either by primary or secondary evidence^[5]. Section 94(1) of the Evidence Act defines “primary evidence” as the documents themselves produced for the inspection of the Court. The general rule, therefore, is that all documents must be proved by primary evidence, i.e. the original. The exceptions to this rule are contained in Section 97 of the Evidence Act. In the foregoing section, it can be seen that in proof of public documents, the only type of secondary evidence that is admissible is the certified true copy. In Ajao v. Ambrose, the Supreme Court per Coker, JSC, stated that “The combined effect of the subsection is that in the case of public documents, the only type of secondary evidence permissible is a certified true copy of the documents and none other.^[6]

Judicial Authorities on the Use of Documentary Evidence

Several judicial decisions have clarified the weight and significance of documentary evidence in election disputes. The following cases highlight the courts’ approach:

In Buhari v. Obasanjo: ^[7]The Supreme Court emphasized that election petitions must be proved with credible evidence and that documentary evidence must be properly linked to oral testimony.

In Atiku Abubakar & Anor v. INEC & Ors ^[8]: The Supreme Court examined the use of INEC’s BVAS data and Form EC8A to determine allegations of electoral malpractice.

In Oyetola v. Adeleke:^[9]The Supreme Court held that documentary evidence, including BVAS accreditation reports, must be properly certified and authenticated for admissibility.

In Awuse v. Odili^[10]: The court ruled that for a document to be admissible, it must be certified in line with the Evidence Act, reinforcing the importance of proper certification in election petitions.

Types of Documentary Evidence in Election Petitions

Election petitions rely on various forms of documentary evidence, including but not limited to:

1. Certified True Copies (CTCs) of Election Results – INEC’s Form EC8A (polling unit results), Form EC8B (ward collation), Form EC8C (local government results), and Form EC8D (state collation).
2. Voter Registers – Used to prove overvoting, voter suppression, or illegal disenfranchisement.
3. Ballot Papers and Tally Sheets – Essential in proving allegations of ballot stuffing or multiple voting.
4. INEC’s BVAS (Bimodal Voter Accreditation System) Reports – Crucial in cases where electronic accreditation is in question.
5. Polling Unit and Collation Center Reports – Documents from electoral officers that may support claims of malpractice.
6. Carbon copies of the Election results
7. Copies of the Election results given to Policemen.

Admissibility of Carbon Copies of Election Results

In AJA v. ODIN & ORS,^[11] “It seems to me that duplicates or carbon copies of results given to agents of political parties that participated in an election can be tendered and admitted in evidence without much ado about having them certified. Such carbonated copies are as good as the original copy within the contemplation of Section 94(4) of the Evidence Act and this constitutes primary evidence. It can be inferred rightly that the duplicate or carbonated copies are deemed as primary evidence that needs no certification for admissibility. The carbonated copies are as good as the original copy. There is an ocean of differences in our law between a duplicate copy and a photocopy of that document. A duplicate copy of a document is a document made along with other documents of the same type and content by one uniform process, such as in the case of printing, lithography etc, and each is primary evidence of the contents of the rest of the document and is admissible in evidence as the original document. But where they are all copies of a common original, they are not primary evidence of the contents of the original.^[12]

Copies of Election Results given to Policemen

It is significant to note that, for Section 91 of the Evidence Act, a statement in a document is deemed to have been made by a person where the document or material part thereof was written, made or produced by him with his hand, or was signed or initiated by him or otherwise recognized by him in writing as one for the accuracy of which he is responsible. A Police Officer who is just to be given a copy of a result will not, as a matter of strict law, qualify as the maker of such a document within the provisions of Section 91 (4) of the Evidence Act. Ordinarily, where such documents sought to be tendered through such police officer, it ought to be shown either that the makers are dead or none of them is fit by reason of their bodily or mental condition to attend as witness or if they are beyond the seas; that it is not reasonably practicable to secure their attendance or that all reasonable efforts to find the, have been without success. However, election petitions are sui generis and it has been held that such results forms given to the police officers were admissible in evidence notwithstanding that they were not the makers of such documents and it did not matter whether such documents were sought to be tendered by policemen other the actual policemen that were given copies of such results.^[13]

Admissibility, Relevance, weight and issue of proper custody of documentary evidence

In determining the admissibility of a document, the issue of proper custody is irrelevant. Instead, proper custody only affects the weight given to the evidence. This principle was established in Torti v. Ukpabi, ^[14]where the petitioner relied on copies of election results given to party agents to prove that he had won the majority of lawful votes and that the results announced by FEDECO had been falsified.

The respondents argued that these copies were inadmissible because they were not tendered from proper custody. However, the Supreme Court held that admissibility is based on relevance, not the source of custody. While proper custody may affect the evidentiary weight of a document, it does not determine its admissibility.

The issue of proper custody arose in Torti v. Ukpabi due to the provisions of Section 70(b) of the Electoral Act, 1982, which required top copies of election results to be sent to the Federal Electoral Commission (FEDECO), and Section 71(1), which mandated FEDECO to keep the election results. The Court of Appeal initially ruled that the copies relied on by the petitioner were secondary evidence, not issued from proper custody, and therefore inadmissible. However, the Supreme Court reversed this decision, emphasizing that the key factor in admissibility is relevance.

In support of its ruling, the Supreme Court cited the Privy Council’s decision in Karuma, Son of Kamiu v. The Queen, which held that:

“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… 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 discretion to disallow evidence if the strict rule of admissibility would operate unfairly against an accused.”

In election petitions, polling booths or units serve as the foundation of the entire electoral process. Documents originating from these units, particularly those in which the total votes scored by candidates are recorded and signed by Presiding Officers and Party Agents, will constitute the strongest evidence for establishing the actual votes received by contestants.

Challenges in Using Documentary Evidence in Election Petitions

Despite its importance, the use of documentary evidence in election petitions is fraught with challenges:

1. Certification Issues – Many election documents must be certified by INEC, and delays in obtaining Certified True Copies (CTCs) often hinder petitioners.
2. Forgery and Tampering Allegations – Opposing parties frequently challenge the authenticity of presented documents.
3. Complexity and Volume of Documents – Election petitions involve extensive paperwork, making analysis and presentation challenging within the stipulated time.
4. Judicial Discretion in Admissibility – Some judges may apply strict evidentiary rules, leading to the exclusion of critical documents.
5. Reliability of Electronic Evidence – While BVAS and electronic transmission of results have improved transparency, courts still require substantial corroborative evidence to validate such records.

Conclusion and Recommendations

Documentary evidence remains a crucial element in proving election petitions in Nigeria. While statutory provisions and judicial pronouncements have provided clarity on its application, challenges persist. To improve the effectiveness of documentary evidence in election petitions, the following recommendations are necessary:

1. Strengthening INEC’s Documentation Process – Ensuring the timely issuance of CTCs to petitioners.
2. Judicial Training on Electoral Evidence – Enhancing judges’ capacity to handle large volumes of electoral records efficiently.
3. Digitization of Election Records – Making election documents easily accessible electronically to reduce delays and disputes.
4. Strict Compliance with Evidentiary Rules – Ensuring petitioners properly authenticate documents before tendering them in court.

Snippet
Election petitions are crucial to Nigeria’s democracy, enabling candidates and parties to challenge results over suspected irregularities. Their success hinges on the quality and admissibility of evidence, with documentary proof playing a key role in substantiating claims of non-compliance, fraud, or misconduct.

Keywords

Election petition, admissibility, documentary evidence

REFERENCE

1. Section 2 Evidence Act, 2011 ↑
2. Section 62(1) & (2) ↑
3. Section 85, Section 89(a) & (e) ↑
4. Section 285(6) ↑
5. Section 93 Evidence Act, 2011 ↑
6. (1969) 1 NMLR, 25 at 30 ↑
7. (2005) 13 NWLR (Pt. 941) 1 ↑
8. (2023) SC/ CV/ 935/ 2023 ↑
9. (2023) LPELR-60392(SC) ↑
10. (2004) 18 NWLR (Pt. 905) 90 ↑
11. (2010) LPELR-9131(CA) ↑
12. JACOB VS ATTORNEY GENERAL OF AKWA IBOM STATE (2002) FWLR (PT 86) 578 ↑
13. Nnadi v. Ezike (1999) 10NWLR (pt. 622) 228 ↑
14. (1984) 1 SCNLR 214 ↑

Source: BarristerNG