By Damian Ajayi

On the issue of the striking out of the witness statements on oath of the appellants’ subpoenaed witnesses together with their testimonies and Exhibits, the PEPT in the case of Abubakar Atiku & Anor. v. INEC & Ors. reported in Court of Appeal Judgments and Rulings on Election Cases (Volume one) page 402 held inter alia that –

“The long and short of all the foregoing is that the objection of the respondents to the witness statements which did not accompany the petition as required by paragraph 4 (5) (b) of the First Schedule to the Electoral Act, is hereby sustained and the said witness statements, being incompetent, are hereby struck out and expunged from the records of the court.
That, given the provisions of paragraph 41 (3) of the same First Schedule to the Electoral Act… It follows that all the evidence, including evidence in cross- examination and all documents coming from and tendered by the said petitioners’ witnesses….are incompetent and hereby also expunged from the records.”

The Supreme Court (Their Lordships, Okoro, Abba-Aji, Garba, Saulawa, Jauro, Abubakar, Agim J.S.C) in affirming the judgement of the Court of Appeal on this issue in the case of Abubakar Atiku & Anor. v. INEC and Ors. in unreported Appeal No. SC/CV/935/2023 delivered on 26th of October 2023 at pages 81 – 85 held in the lead judgment prepared by His Lordship, Okoro, J.S.C. that –

… a combined reading of section 285(5) of the Constitution of the Federal Republic of Nigeria (as amended) and paragraph 4(5) of First Schedule to the Electoral Act, 2022 shows that the time limit for the filing of written statement on oath of witnesses in election petition proceedings is 21 days from the date of declaration of results.

As was pointed out by counsel for the Respondents, due to the sui generis nature of election proceedings, amendment to the petition or calling of additional witnesses will not be entertained after the statutory time limit for the filing of the petition has expired. Thus, a petitioner cannot present his case in bits otherwise the Respondents rights’ to fair hearing will be breached. This was the position of this court in Oke Vs. Mimiko (No) (2014)1 NWLR (Pt. 1388)225.

For the purpose of this analysis, we shall set out and examine the relevant provisions of the statuses and laws relied upon by Their Lordships in this regard.

Section 285(5) of the 1999 Constitution (as amended) which limits the time for presentation of election petition states as follows: “An election petition shall be filed within 21days after the date of the declaration of the result of the elections”.
In line with this, Section 132(7) of the Electoral Act, 2022 provides as follows:
“An election petition shall be filed within. 21days after the date of the declaration of the result of the elections”.

Paragraph 4(5) of the 1st Schedule to the Electoral Act, 2022 stipulates the contents of an election petition which shall be filed. Particularly Paragraph 4(5) of the above Schedule provides as follows: The election petition shall be accompanied by-
(a) a list of the witnesses that the petitioner intends to call in proof of the petition;
(b) written statements on oath of the witnesses; and
© copy or list of every of every document to be relied on at the hearing of the petition.
By sub paragraph (6)of that paragraph, ” a petition which fails to comply with the above requirements shall not be accepted for filing by the secretary.
Paragraph 14(2) of the same 1st Schedule to the Electoral Act subsequently provides as follows: “After the expiration of the time limited by (a) Section 132(7) of this Act for presentation of the election petition, no amendment shall be made-
introducing any of the requirement of paragraph 4(1) not contained in the original petition filed or

effecting a substantial alteration of the ground for, or prayer in, the election petition, or

except anything which may be done under sub paragraph 2(a)(ii), effecting a substantial alterations of or addition to, the statement of facts relied on to support the ground for, or sustain the prayer in the election petition and
(b) paragraph 12 for filing the reply, no amendment shall be made-
(i) alleging that the claim of the seat or office by the petitioner is correct or false or
(ii) except anything which may be done under the provision of sub paragraph 2(a)(ii), effecting any substantial alterations in or addition to the admissions or the denials contained in the original reply filed or to the facts set out in the reply.

In interpreting these provisions in respect to subpoena witnesses, the Supreme Court affirming the judgement of the Presidential Election Petition Tribubal constituted by the Court of Appeal relied heavily on Oke v Mimiko(2013)LPELR20645(SC)at pages 43-45,paras D-D, per Ogunbiyi JSC;(NO.1)(2014) 1 NWLR.(Pt.1388) 225; Ararume v Inec(2019)LPELR-48397(CA); Ogba v Vincent(2015)LPELR-40719(CA) at pages 42-49,paras,C, per Agim,JCA (as he then was, now JSC)

Subpoena is a command from the court. A subpoenaed witness is a witness compelled by the order of the court upon the application of a party to come before it and give evidence. This is distinguished from a willing and voluntary witness in the contemplation of combined reading of Section 285 of the 1999 Constitution; Section 134 of the Electoral Act 2022(as amended) and the relevant paragraphs and sub paragraphs stated above in the 1st Schedule of the Electoral Act 2022(as amended). The drafters of the Act in the relevant sub paragraph did not use the word, “every” or “any” or “all” written statements on oath but rather by using simply “written statement on oath of the witnesses”, it gives room for ambiguity which should have been construed in favour of a petitioner when relied upon by a Respondent to shut the door of justice against another. In determining whether statutory language is plain, an appellate court must look to the language itself, the specific context in which that language is used, and the broader context of the rule as a whole; where only one of the permissible meanings produces a substantive effect that leads to absurdity or is not compatible with the rest of the law, that meaning will not prevail.

Why would the Tribunal or Court issue subpoena to compel a witness to give evidence then turn around without it being set aside to hold that such subpoena witness was incompetent and the evidence attached be struck out?

In Lasun v. Awoyemi(2011) All FWLR (Pt. 577) 713 C.A. the Court of Appeal held on pages 745-746, per Ogunbiyi J.C.A(as he then was) as follows:
It is pertinent to restate that a party to whom the subpoena within was issued is a Respondent. It cannot therefore be within the contemplation of Practice Direction that the Respondent should sign a witness statement or deposition on behalf of petitioner whose allegation of irregularities was against the said party. In other words, it is not within the expectation of the said Practice Direction that the petitioner would frontload the statement of the Respondent. By the mere fact of the subpoena having been issued, the witness is bound to be sworn in on oath to testify and be cross examined… The general provision of the Practice Direction on front loading of witness deposition on oath only contemplates willing and voluntary witness and not one who had to be compelled by an order of the court to testify by way of a subpoena. It is not logical therefore that a party should prepare witness deposition for his adversary who is a Respondent against the petition. Expecting that such witness would sign and adopt the deposition is beyond human reasoning as rightly submitted by the learned counsel.

It is our most humble submission that the Supreme court case of Oke v Mimiko(Supra); Ararume & Anor v Inec (Supra) were not in respect of subpoena witnesses but extension of time to file and amendment of petition outside the time stipulated by the law. With utmost respect, the court ought to have distinguished the ratio in both cases and firmly erect the pillar of good law and justice in enhancing our legal jurisprudence.
To further strengthen this position and ensure the door of justice is not shut down, the Tribunal or Court is empowered by Paragraph 42(1) of the Ist Schedule to the Electoral Act 2022 which states that “the tribunal or court may summon a person as a witness who appears to the tribunal or court to have been concerned in the election”. The justices of the Court of Appeal and the Supreme Court could have drawn strength from this provision respectfully. We respectfully agree, with the Justices of the Court of Appeal and Supreme Court that the provisions of Order 3 Rule 3(1) of the Federal High court (Civil Procedure Rules)2009 should not override the clear provisions of the Electoral Act 2022 but in the absence of clear provisions in the Electoral Act 2022(as amended) on Subpoena witnesses, the Federal High Court (Civil Procedure rules) 2019 having provided more specific provisions to the filing of Subpoena witness’ statements, the court was empowered to do justice with it by employing same to resolve the issue of filing subpoena witness statement on oath after the 21days stipulated for election petition to be filed.

The Court of Appeal seems to have been confronted with a plethora of conflicting authorities. Respectfully Their Lordships examined arduously from page 80-100 of the PEPT judgement under the Resolution of the Respondents’ objections to subpoena witness and documents, the issue and subject unsatisfactorily. Respectfully we commend Their Lordships for the thoroughness in trying to reconcile the law in all these Court of Appeal decisions in Omidiran v Etteh; Lasun v Awoyemi on one hand and Ogba v Vincent; Okwuru v Ogbree Ararume & Anor v Inec & Anor on the other hand.

Respectfully it is our view that the supreme court as the apex court was presented with the opportunity to review, reconcile and reaffirm the law in this regard but unfortunately glossed over it and erroneously relied on Oke v Mimiko (Supra) which was substantially and fundamentally different from the issue of subpoena witness. Respectfully, it is our humble view that the position of the law today as posited in the Supreme Court decision in ABUBAKAR ATIKU & ANOR v INEC & ORS (2023) is that subpoena witness statement on oath on no account and under no circumstance can be filed after the time frame stipulated for filing election petition. This will do grave injustice to parties in election petitions and hunt our legal jurisprudence badly by taking us back into the grave of technicality and far away from the living light of justice. All courts in Nigeria are bound to follow this decision of the Supreme Court based on the principle of stare decisis.
With utmost respect, we commend the revered justices of the Supreme Court to the submission in ABUBAKAR V YARADUA (2008) ALL FWLR (Pt.404)1409 SC when Tobi JSC (Rtd) held on page 1450 as follows:

The mere fact that the application was brought by the 4th to 808th respondent to call additional witnesses is clear that a mistake was committed somewhere when only two witnesses, were put in the list of witnesses. Should the court punish the Respondent for their mistakes in such a big way of residing them to call 213 witnesses? The answer is, no. That will be justice in inverted commas. That will be injustice. And I cannot sit in this court to do injustice. I am in entire agreement with the court of Appeal when the court held that full opportunity should be given to parties in the interest of justice without due regard to technicalities… If courts of law are bound to do substantial justice in ordinary civil matters, how much less in an election petition.

We believe the Supreme Court has the power to revisit and re-examine these decisions in subsequent cases brought it before and seize the opportunity to make a more profound pronouncement on the law and justice of the issue in this regard. Only the Supreme Court can do this for justice to be done and seen to be done in any circumstance.

Damian Ajayi writes from [email protected]