Statistical analysis of election results crucial for expert evidence under section 68 of Evidence Act, 2011

SENATOR AHMAD ABUBAKAR MO-ALLAHYIDI v. BINOS DAUDA YAROE & ORS
CITATION: (2019) LPELR-48733 (CA)

In the Court of Appeal

In the Yola Judicial Division

Holden at Yola
ON SATURDAY, 26TH OCTOBER, 2019
Suit No: CA/YL/EPT/AD/SN/168/2019

Before Their Lordships:

CHIDI NWAOMA UWA, JCA
JAMES SHEHU ABIRIYI, JCA
ABDULLAHI MAHMUD BAYERO, JCA

Between

SENATOR AHMAD ABUBAKAR MO-ALLAHYIDI -Appellant(s)

And

1. BINOS DAUDA YAROE
2. PEOPLE’S DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION -Respondent(s)

LEAD JUDGMENT DELIVERED BY ABDULLAHI MAHMUD BAYERO, J.C.A.

FACTS OF THE CASE
This appeal is against the Judgment of the National and State Houses of Assembly Election Petition Tribunal for Adamawa State, Yola.The fact of the case is that the appellant was the candidate sponsored by the All Progressives Congress (APC) for the Adamawa South Senatorial District election, which held on February 23, 2019. At the conclusion of the election, the 3rd respondent returned the 1st respondent, sponsored by the 2nd respondent, as winner. Aggrieved with the return of the 1st respondent, the appellant, by a Notice of Petition, approached the Tribunal and challenged the return of the 1st respondent, on the following grounds:

I. That the 1st Respondent was not duly elected by majority of lawful votes cast at the election held on February 23, 2019 in respect of Adamawa South Senatorial District of Adamawa State.
II. The election of 1st respondent was invalid by reason of corrupt practices or non-compliance with the provisions of the Electoral Act, 2010 (as amended). It was the contention of the appellant that the 1st respondent would not have been duly elected by majority of lawful votes cast in the election if the results from the election in the affected Local Governments are voided, on the ground of electoral irregularities and acts of non-compliance. After hearing the Petition, the Tribunal dismissed the Petition. Dissatisfied, Appellant appealed to the Court of Appeal.

ISSUES FOR DETERMINATION
1. The appeal was determined on the issues formulated by the appellant, as follows: 
Whether having regards to the facts and circumstances of this case the Tribunal can be said to have rightly applied Section 68 of the Evidence Act, 2011 when it refused to admit or give probative value to the evidence of PW10 and Exhibit ‘AA.
2. Whether having regards to the provisions of Section 83(1) and 2(b), 87(a), 89(a)(i) (ii) and (e) of the Evidence Act, 2011, the Tribunal can be said to have acted within the ambit of the law when it refused to accord probative value to or act on the evidence disclosed by Exhibit N, N1-N33.

APPELLANT’S COUNSEL SUBMISSIONS
On issues one, the appellant submitted that the rejection of the “Report of the Inspection/Statistical Analysis of Accreditation Data in Forms EC8A (1), EC8B(1), EC8C(1) EC8D(1), Voters Registers and Polling Unity by Polling unit accreditation report used in the February 23, 2019 Adamawa South Senatorial District Election” and the evidence of PW10 had no legal basis and ought to be set aside. According to Appellant, the correct test of the relevance of expert opinion is whether the witness is specially skilled in the particular field in which his testimony/opinion becomes material and where so found, evidence of his qualification as an expert in the said field becomes vital, admissible and relevant. He cited ANPP V. USMAN (2008) 12 NWLR (Pt. 1100); (2008) LPELR-3786(CA).

That the PW10 tendered proof of his qualification to render statistical analysis in Exhibit AA, yet, that piece of evidence was glossed over by the Tribunal in preference to Exhibit ZC- MBA of School of Business Management and that it was on this basis that the tribunal held that PW10 was not qualified to render statistical opinion as expert on the ground that he has only MBA in Business Management.

On issue two, the appellant submitted that the rejection of Exhibit N, N1-N33 which are duly certified true copies of smart card reader Report for the Adamawa South Senatorial Election was a failure of the tribunal to appreciate the exceptions created by the Section 83(1) of the Evidence Act on the requirement of a maker being called to give evidence on document sought to be relied upon by a party in his case. That original documents and the maker thereof may not be available at all times which is why Section 83(2) of the Evidence Act 2011 created exceptions to the general rule that the maker of a document must be called for the document to be admissible/accorded probative values; that secondary evidence can be led in place of primary evidence. That Exhibit N series is a certified true copy of the 3rd respondent’s official document, which renders it a public document under Section 102 of the Evidence Act 2011.

RESPONDENT’S COUNSEL SUBMISSIONS
On issue one, the respondents submitted that the tribunal was right not to ascribe probative value to the evidence of PW10 as he was not an independent witness having been contracted by the Appellant to analyze results for the Appellant’s political party. That his evidence of statistical analysis cannot stand without the elements of bias and sentiments in favour of the appellant and the Party who contracted him. That PW10 under cross-examination admitted he did not know who made the entries into the Forms EC8A-EC8D series, which is no doubt an admission that he was neither the maker of the document nor involved in the entries made in the document and this rendered his evidence of no probative value to the tribunal. That statistical analysis of election results is not one of the items on which expert opinion could be given in evidence under Section 68 of the Evidence Act as held in ANDREW vs. INEC [2018] 19 NWLR (Pt. 1625) 523 at 557; (2018) LPELR-43847 (SC).That the case of AREGBESOLA & 2 Ors V. OYINLOLA & 2 Ors [2011] 9 NWLR (Part 1253) 458; (2010) LPELR-3805(CA) which is the only case in election petition of all the cases relied upon by the appellant, is with respect distinguishable from this one and is not at all helpful to the appellant in this case.

On issue two, the respondents submitted that the evidence obtained from the Smart Card Reader did not prima facie meet the conditions for its admissibility under Section 84 of the Evidence Act, 2011 and the Tribunal was therefore right not to have acted on it. That Section 84(4) of the Evidence Act is clear and unambiguous as to what a certificate with respect to electronically generated evidence should contain. That the certificate of INEC in the instant case only fulfils paragraph (c) of the subsection and didn’t not describe the manner in which the statement was produced. It does not also state the particulars of the device involved in the production of the document. As such, the Smart Card Reader given by the witnesses is therefore inadmissible for having failed to meet the conditions for admissibility.

RESOLUTION OF ISSUES
In resolving issue one, the Court held that the issue for determination is whether the Tribunal was bound to accept and act on the report of the statistical analysis of PW10 and Exhibit AA. The cited the case of AKEREDOLU V. MIMIKO (2014) 1 NWLR (PT. 1388) 402 at 439-440, H-B; (2013) LPELR-21413 (SC), where the Supreme Court held thus:

Furthermore, the Court cited ANDREW V. INEC (2018) 19 NWLR (Part 1625) 523 at 557; (2018) LPELR-43847(SC) wherein the Apex Court held that:
“As was rightly in my opinion submitted by Chief Wole Olanipekun SAN, in an election matter such as the instant case, the evidence required is not the one which was picked up from perusing documents made by others. Otherwise, any one with basic comprehension/arithmetic skills would be able to testify anywhere in Nigeria. The requirement of the law is that a petitioner must call eye witnesses who were present when the entries in the forms were being made and can testify on how the entries in the documents were arrived at. It is to be noted that the appellant’s witnesses were not the makers of the documents in respect of which they testified and were not present when the documents were made. They were thus, not competent and/or capable of giving testimonies and explain the circumstances surrounding how the entries in the electoral documents were made. See Oke v. Mimiko (Supra).”

Also, that Section 68 of the Evidence Act 2011 which allows for the reception of evidence of experts does not cover the area of statistical analysis of election results in respect of which PW10 testified and this provision is fortified by the court in ANPP V. USMAN (2008) 12 NWLR (1100) 1 66 at 68 paragraphs A-E. This issue was resolved in favour of the Respondents.

In resolving issue two, the Court held that the INEC Certificate in respect of Exhibit N1 – N33 in the instant case only shows the signature of one Ishaka Bala, a senior legal officer Independent National Electoral Commission Adamawa State. It does not describe the manner in which the Exhibits were produced, nor the particulars of the device involved in the production of the Exhibits to show that they were produced by a computer during the period over which the computer was used to store the information.

Also, no evidence was given by the appellant or any of his witnesses before the Tribunal to lay the necessary foundation or requirement for admissibility of Exhibit N series as provided by Section 84(4)(a) and (b) of the Evidence Act, 2011. That it is further a requirement of the law that since the appellant tendered Exhibits N series before the Tribunal, he was required to have called evidence in relation to the use of the computer from which Exhibits N series were generated. The Court relied on KUBOR & ANOR V. DICKSON & ORS (2012) LPELR – 9817 (SC) Pages 48-50 where the Supreme Court held thus:

“A party that seeks to tender a computer generated document needs to do more than just tendering same from the bar. Evidence in relation to the use of the computer must be called to establish the conditions set out under Section 84(2) of the Evidence Act, 2011. I agree entirely with the above conclusion. Since the Appellants never fulfilled the pre-conditions laid down by law, Exhibits D and L were inadmissible as computer generated evidence/documents.”
This issue was resolved in favour of the respondents.

HELD
The Court dismissed the appeal for lacking in merit.
Appearances:
U.S. Sule, SAN with him, Abubakar Ali, Esq.,
C. F. Odum, Esq., C. F. Odiniru, Esq., -For Appellant(s)
H.A. Isah, Esq. and A.A. Mbamoi, Esq.

Chief L.D. Nzadon, Esq. with him,
Abubakar Sai’d, Esq., Hussein G. Maidawa, Esq. -For 1st Respondent
and H. Omeh, Esq.

Ahmad Isa, Esq. with him, S. J. Wugira, Esq. -For the 2nd Respondent
and S.G.Udoh, Esq.

E.O. Odoh, Esq. with him, Stephen Ibyem Esq.
and J. Williams, Esq. -For 3rd Respondent

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