IBINABO SONNY AMACHREE & ANOR v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS
(2019)LCN/13768(CA)
In The Court of Appeal of Nigeria
On Monday, the 26th day of August, 2019
CA/PH/EPT/393/2019
JUSTICES
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
BITRUS GYARAZAMA SANGA Justice of The Court of Appeal of Nigeria
ABUBAKAR MUAZU LAMIDO Justice of The Court of Appeal of Nigeria
Between
1. IBINABO SONNY AMACHREE
2. ALL PROGRESSIVE GRAND ALLIANCE (APGA) Appellant(s)
AND
1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
2. BOMA GOODHEAD
3. PEOPLES DEMOCRATIC PARTY (PDP) Respondent(s)
RATIO
WHETHER OR NOT ELECTION PETITIONS ARE REGARDED AS SUI GENERIS
It is beyond doubt that Election Petitioners are regarded as sui generis and this stems from certain peculiarities in them. In stricto sensu, though a civil proceeding, it is quiet distinct from civil proceedings. Election petitions stand on their own and are regulated or bound by distinct set of rules and legislations specifically designed for the purposes of hearing and determination of same. They are also highly technical in the sense that certain defects, defaults or irregularities which may be overlooked and which are not sufficient to adversely affect the competence of a claim in an ordinary civil proceeding may have a fatal consequence in an election Petition. See ABUBAKAR V. YAR’ADUA (2008) 12 SC (PT II) 1; OKE V. MIMIKO (2014) 1 NWLR (PT 1388) 225; BUHARI V. YUSUF (2003) 6 SC (PT II) 156 and AWUSE V. ODILI (2004) 8 NWLR PT 876) 481. PER LAMIDO, J.C.A.
PROVISIONS CONTAINED IN AN ELECTION PETITION
Now it is to be observed that the First schedule to the Electoral Act, has specified in clear terms what an election petition shall contain in paragraph 4 thereof. The relevant provision applicable for this only issue in the appeal is Paragraph 4 (5) (i) (a) and (b). It states thus:-
(5)(i) 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.
Therefore, every election petition shall contain not only the list of witnesses he intended to call in proof of his Petition but also the written statements of the witnesses to be called. This is mandatory and where a Petitioner fails to adhere to the requirements stated on Paragraph 4(5)(i)(a) and (b) of the First Schedule, then his petition shall not be accepted for filing by the secretary of the tribunal.
Paragraph 41 (1) and (3) of the First Schedule also reinforced the above quoted provision. The said provision provides that:
41.(1) Subject to any statutory provision or any provision of these paragraphs relating to evidence, any fact required to be proved at the hearing of a petition shall be proved by written deposition and oral examination of witnesses in open Court.
(2)- – – – –
(3) There shall be no oral examination of a witness during his evidence in chief except to lead the witness to adopt his written deposition and tender in evidence all disputed documents or other exhibits referred to in the deposition.
The above provision seems to limit proof of oral facts only by filing of written statement from the witness and oral examination in chief is not allowed save for the witness to tender in evidence all disputed documents or other exhibits referred to in the deposition. But the question here is whether the above provision applies to all witnesses without a distinction. A witness is one who testifies in a cause before a Court or tribunal and in a general sense witnesses includes all persons from whose lips testimony is extracted in any Judicial proceeding. See TEJUMADE & ANOR V. OLANREWAJU & ORS (2015) LPELR 25985 and IDOWU V. OLORUNFEMI & ORS (2013) LPELR 20728. PER LAMIDO, J.C.A.
THE POWER OF THE COURT TO ISSUE A SUBPOENA
The power to issue subpoena to an individual is vested in all our Courts including the trial tribunal. The subpoena in short is an order of the Court or tribunal commanding a named individual in the name of the president of the Federal Republic of Nigeria to attend Court to either testify in any petition, or to produce and tender documents or both. Where the subpoena is to give oral evidence it is referred to as subpoena ad testificandum; where a named person is to produce and tender document, it is called subpoena duces tecum and where it is both for the purpose of testifying and tendering documents, it is called subpoena duces tecum ad testificandum.
In the appeal before us, clearly it is subpoena ad testificandum. See P285A of the Record of Appeal and AKINTAYO V. JOLAOYE (2010) LPELR 3688. PER LAMIDO, J.C.A.
A SUBPOENA AD TESTIFICANDUM
A person summoned with subpoena ad testificandum is one summoned to testify and will therefore be required to go into the witness box and testify on oath or affirmation.?
See OMIDIRAN V. ETTE (2010) LPELR 9160; ADEYELA V. ADEYEYE & ORS (2012) LPELR 3618 and OLANIYAN V. OYEWOLE (2008) 5 NWLR (PT 1079) 114. PER LAMIDO, J.C.A.
ABUBAKAR MUAZU LAMIDO, J.C.A. (Delivering the Leading Judgment): This is an interlocutory appeal from the ruling of the National and states House of Assembly Election Petition Tribunal, Port Harcourt, Rivers State delivered on 01/08/2019 by Kaigama, J (Chairman), Bamgbose and Abdulkadir, JJ (Members).
?On the 9th March 2019, the 1st Respondent conducted general election across the country wherein the 1st Petitioner/Appellant was sponsored by the 2nd Petitioner/Appellant in the said election to the office of member, House of Representatives in the Asari-Toru/Akuku-Toru Federal Constituency of Rivers State. However, on 10th March 2019 a day after the election, the 1st Respondent suspended all electoral exercise in Rivers State on the ground of irregularities in the exercise. On 5th April 2019, the 1st Respondent announced the result of the election into the office of member, House of Representatives for Asari-Toru/Akuku-Toru Federal Constituency declaring the 2nd Respondent as the winner of the said election. Against the declaration and return of the 2nd Respondent as the winner of the election, the Petitioners/Appellants filed this
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petition on the grounds that:-
(a) The 2nd Respondent was not duly elected by majority of lawful votes cast at the election.
(b) The election of the 2nd Respondent is invalid by reason of non compliance with the provision of the Electoral Act, 2010 (as Amended).
The Petitioner then jointly and severally claims against the Respondents the following reliefs:
(a) That it may be determined that the 1st Petitioner was duly and validly elected and ought to be returned as member, House of Representatives in the Asari-Toru/Akuku-Toru Federal Constituency having polled the highest number of lawful votes cast at the election to that office held on 9th March 2019 in Rivers State and having satisfied the constitutional requirements for the said election.
(b) That it be determined that the 2nd Respondent was not duly elected by a majority of lawful votes cast in the said election and therefore the purported declaration and return of the 2nd Respondent by the 1st Respondent as member, Asari-Toru/Akuku-Toru Federal Constituency of Rivers State is unlawful, undue, null, void and of no effect.
(c) An order directing the 1st Respondent to
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forthwith and immediately withdraw the purported Certificate of return being paraded by the 2nd Respondent as the certificate issued in her favour by the 1st Respondent as the duly elected member, House of Representatives in Asari-Toru/Akuku-Toru Federal Constituency, Rivers State.
(d) An order directing the 1st Respondent to issue a Certificate of Return to the 1st Petitioner as the duly elected member, House of Representatives in the Asari-Toru/Akuku-Toru Federal Constituency, Rivers State.
Upon settlement of pleadings and conclusion of pre-trial conference, the Petitioners opened their case and called four witnesses. The Petitioners 5th witness is one Yusuf Mohammed a staff of the 1st Respondent who was on subpoena. The Respondent objected to calling him as a witness on the ground that he has not deposed to a written statement on oath. The Tribunal upheld the objection and held that the witness is not competent to testify.
Aggrieved by the ruling of the Tribunal, the Petitioners/Appellants appealed to this Court vide a notice of appeal filed on 03/08/2019. The Notice of Appeal contains four grounds of appeal. The grounds of appeal are
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hereunder reproduced:-
GROUND 0NE
The lower tribunal erred in law when it disallowed a witness subpoenaed by it through subpoena ad testificandum from giving evidence at the tribunal, and thus occasioned a grave miscarriage of justices.
PARTICULARS OF ERROR
i. The Petitioners indicated in their Answers to be the Pre-Hearing Information Sheet issued by the lower tribunal that they will call witnesses not yet listed which answer was adopted by all parties on 09/07/2019 without any objection from any of the Respondents.
ii. During the Pre-Hearing session, particularly that of 25/07/2019, the Petitioners brought to the notice of the lower tribunal that they intend calling at least three witnesses on subpoena without any objection from any of the Respondents.
iii. The Petitioners requested the lower tribunal through a letter to subpoena three officials of the 1st Respondent to testify on behalf of the Petitioners at the lower tribunal.
iv. The lower tribunal issued a subpoena ad testificandum on 26/07/2017 on two officials of the 1st Respondent to testify on behalf of the Petitioners.
v. Upon service of the subpoena ad
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testificandum on one of the officials of the 1st Respondent by a bailiff attached to the registry of the lower tribunal, the official appeared in Court on 01/08/2019 to give evidence on behalf of the Petitioners.
vi. The lower tribunal after listening to objections in law by the 2nd and 3rd Respondents? Counsel disallowed the subpoenaed witness from giving evidence on behalf of the Petitioners on the grounds that the Petitioners did not frontload the subpoenaed witness deposition.
vii. The decision of the lower tribunal is contrary to and with the decision of the Court of appeal in HON. CHIDI IBE & ANOR V. HON. RAPHEAL NNANNA IGBOKWE & ORS (2012) LPELR ? 15351 CA at pages 46-48, paras E-A on the same issue.
GROUND TWO
The learned lower tribunal erred in law when it held that failure of the Appellants to attach witness statement on oath of the subpoenaed witness from giving evidence on behalf of the Petitioners.
PARTICULARS OF ERROR
i. The provision in the Electoral Act 2010 (as amended) in its Paragraph 41 (1) of the 1st Schedule to the Act is only applicable to witness who are to testify for the
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parties at the tribunal same is not applicable to witnesses on subpoena.
ii. That a witness on subpoena needs not have his witness deposition to be before the tribunal to be able to testify and give evidence before the tribunal.
iii. The learned tribunal erred by holding that the provision of Order 20 Rule 19 of the Federal High Court (Civil Procedure) Rules 2019 is inapplicable and cannot override the provision of Paragraph 41(1) of the 1st Schedule to the Electoral Act 2010 (as amended).
iv. The provision of Paragraph 41(1) of the 1st Schedule to the Electoral Act 2010 (as amended) are subject to the provisions of Evidence Act, 2011.
v. Order 20 Rule 19 of the Federal High Court (Civil Procedure) Rules 2019 on subpoena is applicable in election petition by virtue of Paragraph 54 of the 1st Schedule to the Electoral Act 2010 (as amended) which similar provisions and position was upheld by the Court of Appeal in HON. BASHIR ADEYELA V. OLAJIDE ADEYEYE & ORS (2010) LPELR ? 3618 CA.
GROUND THREE
The learned lower tribunal erred in law by holding that the Federal High Court (Civil Procedure) Rules 2019 on subpoena is not
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applicable in election petition and that the Electoral Act has specific provisions that only witnesses with statements on oath are allowed to testify and give evidence before the lower tribunal.
PARTICULARS OF ERROR
i. The provisions of the Electoral Act 2010 (as amended) in its Paragraph 42 of the 1st Schedule to the Act allows the lower tribunal to summon witnesses who appeal to it to have been concerned in the election.
ii. The witnesses summoned by the lower tribunal through subpoena ad testificandum are officials of the 1st Respondent, being the body that conducted the election.
iii. The 1st Respondent did not object to the giving of evidence by its officials.
iv. The Respondents are entitled to cross-examine the witness subpoenaed by the lower tribunal ad testificandum if they so desire.
v. There is no specific provision in the entire Electoral Act mandating witnesses summoned through subpoena ad testificandum to file a witness statement on oath.
GROUND FOUR
The learned lower tribunal erred in law when it came to the conclusion that on the premise of the fact that the evidence which the witness on subpoena
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ad testificandum is to be given is not known to the Respondents and the court and the Petitioners having failed to avail the Respondents prior notice of evidence the 1st Respondent?s staff, the witness cannot be allowed to proceed to testify and he is accordingly barred from testifying in the tribunal.
PARTICULARS OF ERROR
i. A witness on subpoena ad testificandum can lead oral evidence in examination- in- chief without need for a prior written and sworn deposition.
ii. The witness subpoenaed by the lower tribunal is a staff of the 1st Respondent and whose evidence will be known through his testimony in the witness box, while all the Respondents may cross-examine the subpoenaed witness as part of fair hearing.
iii. The Respondent may apply for adjournment to cross-examine the subpoenaed witness if the evidence is oral as part of fair hearing.
iv. The Respondents may even elicit evidence from the subpoenaed witness who is a staff of the Respondent to support their defence to the petition.
In compliance with the rules of this Court, the Appellants filed their brief of Argument on 15/08/2019 and replies to the 2nd
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Respondents brief of argument on 21/08/2019 and Reply to the 3rd Respondent?s brief of argument on 21/08/2019. From the Appellants? brief of argument, a single issue for determination was formulated. The issue is:-
Whether a witness that has been subpoenaed to testify in an election Petition proceedings as applied for by party in the Proceedings is a competent witness to give testimony without prior written statement on oath of the said subpoenaed witness who is in Court ready and willing to testify.
The 1st Respondent filed its brief of argument on 19/08/2019 and therein raised a single issue for determination thus:
Was the Election Petition Tribunal not right to have refused the Appellants? witness on subpoenaed testificandum to testify in the absence of a witness statement on oath deposed to before the Tribunal?
The 2nd Respondent also filed his brief of argument on 19/08/2019 and raised a single issue for determination. The issue is thus:-
Whether the learned Justices of the Tribunal were right in disallowing the subpoenaed witness who did not depose to a statement on oath from testifying?
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And finally, the 3rd Respondent filed its brief of argument and raised two issues for determination. The issues raised are:-
1. Whether in the light of Paragraphs 4(5)(a), 14 (1), (2) and 41 (1) and (3) of the First Schedule to the Electoral Act, 2010 as amended, Section 285 (5) of the Constitution of the Federal Republic of Nigeria as amended, a witness is allowed to give oral evidence and or testify without a written deposition in an election matter?
2. Whether the Electoral Act, 2010 as amended has not made adequate and specific provisions for the regulation and procedure for witnesses who are called to testify before it?
The sole issues formulated by the Appellants, the 1st and 2nd Respondents are similar. However, the 3rd Respondent seems to be crying more than the bereaved as he formulated two issues for determination. The issue as formulated by the Appellants will dispose of this appeal one way or the other. The issue will be adopted by the Court with a slight modification. The issue for the determination of this appeal is:-
Whether a witness on subpoena ad testificandum in an election petition is a competent
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witness that can testify without a prior written statement on oath.
In arguing this issue, learned counsel for the Appellants O. M. Afolabi, Esq. submitted that a subpoena is issued to a person to attend Court to either testify or produce documents or both and a disobedience to that order attracts sanction from the issuing Court or tribunal. He referred toBUHARI & ANOR V. OBASANJO (2005) 1 NWLR (PT 941) 1; ODU V. DUKE & ORS (2006) 1 NWLR (PT 961) 375 and IBRAHIM V. OGUNLEYE & ORS (2010) LPELR 4556. He also stated that a person served with a subpoena ad testificandum is bound to appear in Court to give evidence. He referred to IBE & ANOR V. IGBOKWE & ORS LPELR 15351.
Learned counsel further argued that by virtue of Section 175 of the Evidence Act 2011 every person is a competent witness to testify unless the Court considers that the person is by reason of tender years, extreme old age, disease of the body or mind prevented from giving rationale answers to questions put to him. He referred to IBRAHIM V. OGUNLEYE & ORS (Supra). He then stated that a witness on subpoena is competent to testify without a prior written
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statement on oaths and that the provision of Paragraph 41(3) of the First Schedule to the Electoral Act is a procedural law that cannot override the provision of Section 175 of the Evidence Act. He referred toIBE V. IGBOKWE & ORS (Supra).
He also argued that the provisions of Paragraphs 4(5), (6) and 41 (3) of the 1st schedule to the Electoral Act on listing or frontloading witness deposition on oath and adoption of same apply to willing witnesses and not those compelled to attend by a subpoena. He referred to LASUN V. AWOYEMI & ORS (2009) 16 NWLR (PT 1168) 513; IBRAHIM V. OGUNLEYE & ORS (Supra); LAGOS STATE GOVT & ORS V. ONOSIPE & ORS (2016) LPELR 40561; OGUNSANYA V. ONOSIPE & ORS (2016) LPELR 40560 and ADEYALA V. ADEYEYE & ORS (2010) LPELR 3618. Learned counsel urged the Court to allow the appeal and grant the reliefs in the Notice of Appeal.
In arguing the sole issue for determination, learned counsel for the 1st Respondent submitted that the Electoral Act 2010 does not provide for oral examination of a witness during his examination in chief. He referred to Paragraph 41 (3) of the First Schedule to the Electoral Act.
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Counsel also stated that the case of IBRAHIM v. OGUNLEYE & ORS (Supra) cited by the Appellants was decided based on the repealed Electoral Act 2006.
He also stated that the Electoral Act, 2010 has prescribed the procedure for taking evidence of witnesses and this precludes the provisions of the Federal High Court (Civil Procedure) Rules 2019. He then stated that the Appellants invoked in aid Order 20 Rule 15 of the Federal High Court (Civil Procedure) Rules 2019 to allow a subpoenaed witness to testify without a written statement on oath but failed to realize that the rules of the Tribunal cannot be Subordinate to the Federal High Court (Civil Procedure) Rules. This is so because where an Act prescribes a method of exercising a statutory power, any other method is excluded. He referred to JOHNSON & ORS V. MOBIL PRODUCING (NIG) UNLTD & ORS (2009) LPELR 8280.
Counsel stated that the tribunal was right to disallow the witness from testifying for and to allow the witness to give oral evidence would defeat the essence of frontloading process and would deprive the Respondents the opportunity to know the case being put forward by the
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Appellants through the witness. Importantly, he argued that the evidence would contravene the provision of Paragraph 4 (5) of the First Schedule to the Electoral Act. He referred to SHINKAFI & ANOR V. YARI & ORS (2015) SC 907; WAMINI-EMI V. IGALI & ORS (2008) LPELR 5091; NECO V. TOKODE (2010) LPELR 9121; GEBI V. DAHIRU & ORS (2011) LPELR 9234 and KRAUS THOMPSON ORG. V. NIPPS (2004) 17 NWLR (PT 901) 44. Learned counsel urged the Court to dismiss the appeal.
In arguing this issue, learned Counsel for the 2nd Respondent Kelechi Nwuzi, Esq. submitted that election Petitions are sui generis. They stand on their own and are bound by their distinct set of rules, consequently any defect, default or irregularities which are readily pardonable in ordinary civil proceeding can be fatal to a Petition. He referred to SA’AD & ANOR V. MAIFATA & ORS (2008) LPELR 4915; ABUBAKAR V. YAR’ADUA (2008) 12SC (PT II) and OKE V. MIMIKO (2014) 1 NWLR (PT 1388) 225.
Learned counsel submitted further that by Paragraphs 5(b) and 41 (3) of the First Schedule to the Electoral Act, every Petition shall be accompanied by witness deposition. He referred to
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OKE V. MIMIKO (NO 1) (Supra). Therefore, the existence of a witness statement on oath is the foundation upon which a witness can testify in an election Petition. He referred to OGBA V. VINCENT (2015) LPELR 40719.
He also argued that Paragraphs 54 of the 1st Schedule to the Electoral Act, 2010 allows the tribunal to apply the Federal High Court (Civil Procedure) Rules with necessary modification and thus the Rules relating to the issuance of subpoena are applicable to the tribunal. He further argued that by Order 3 Rule 3 (2) of the Federal High Court (Civil Procedure) Rules, a witness on subpoena is required to file his statement on oath and having failed to in the circumstances, left the tribunal with no option than to disallow the witness from testifying which is the correct position of the law. Counsel urged the court to dismiss the appeal.
Learned counsel for the 3rd Respondent Wale Balogun, Esq submitted that by the provisions of Paragraphs 4(5) and 41(1) and (3) of the First Schedule to the Electoral Act the Petitioners are expected to file a list of witnesses they intend to call, written depositions of the witnesses and oral examination
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of witness is only limited to adoption of written deposition and these are mandatory requirements that must be complied with by a petitioner. He referred to JEMIDE V. HARRIMAN (2004) ALL FWLR (PT 233) 1765 and OFFOMAH V. AJEGBO (2000) 1 NWLR (PT 606) 250. He also argued that since the petitioners failed to frontload the deposition of the witness on subpoena, the tribunal was perfectly right to hold that the said witness is not competent.
He also stated that the essence of Paragraphs 4(5) and 41 of the First Schedule is to ensure that adequate notice is given to the other party so as to ensure fair hearing and for the other party to prepare his defence. Failure of the Appellant to frontload the witness statement is in clear breach of the rule of natural Justice and akin to laying an ambush. He referred to ADEGBUYI v. MUSTAPHA & ORS (2010) LPELR 3600.
Learned counsel also argued that once the law has prescribed a way of doing a thing, that way and no other way shall be allowed. He referred to OKWUOSA V. GOMWALK (2017) ALL FWLR (PT 882) 1182; OKEREKE V. YAR’ADUA (2008) 12 NWLR (PT 1100) 95; KAMBA V. BAWA (2005) 4 NWLR (PT 914) 43 and IBRAHIM V.INEC & ORS (1999)8 NWLR (PT 614) 334.
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Learned counsel argued that the authorities cited by the Appellants in support of their contention that a subpoenaed witness can testify even in the absence of a written deposition are all inapplicable to the present appeal. Counsel urged the Court to dismiss this appeal.
Now, the Appellants? opened their petition and called 4 witnesses. The intended 5th witness is one Yusuf Mohammed, a staff of the 1st Respondent who participated in the conduct of the election to the office of Member House of Representatives for Akuku ? Toru /Asari ?Toru Federal Constituency of Rivers State. He was a supervisory presiding officer. He was issued with a subpoena ad testificandum and in obedience to such subpoena, he duly appeared. See PP 285A of the Record of Proceeding. There were series of objections from the three Respondents on the propriety of allowing a witness on subpoena to give evidence viva voce without a written deposition in contravention of Paragraphs 4 and 41(3) of the First Schedule to the Electoral Act. In its ruling, the Tribunal accepted the argument advanced by the Respondents and
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held as follows
. Under Paragraph 4 of the 1st Schedule to the Electoral Act, every witness in an election petition is required to depose to witness statement on oath and by Paragraph 41(3) of the said 1st schedule there shall be no oral examination of witness during his evidence in chief except to adopt his written deposition and to tender documents or other exhibits contained in his deposition.?
The tribunal went on to hold that:-
we are unable to agree with the Petitioners? counsel that we should invoke Order 20(15)(sic) of the Federal High Court (Civil Procedure) Rules 2019 because the provisions of Paragraphs 4 and 41 of the 1st Schedule to the Electoral Act are very clear and unambiguous. In the circumstance, the objections of learned counsel are hereby upheld and we rule that a witness who has not deposed to a witness statement whether on subpoena or not, not being a witness called by this tribunal is incompetent to testify and should be discountenanced.?
It is beyond doubt that Election Petitioners are regarded as sui generis and this stems from certain peculiarities in them.
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In stricto sensu, though a civil proceeding, it is quiet distinct from civil proceedings. Election petitions stand on their own and are regulated or bound by distinct set of rules and legislations specifically designed for the purposes of hearing and determination of same. They are also highly technical in the sense that certain defects, defaults or irregularities which may be overlooked and which are not sufficient to adversely affect the competence of a claim in an ordinary civil proceeding may have a fatal consequence in an election Petition. See ABUBAKAR V. YAR’ADUA (2008) 12 SC (PT II) 1; OKE V. MIMIKO (2014) 1 NWLR (PT 1388) 225; BUHARI V. YUSUF (2003) 6 SC (PT II) 156 and AWUSE V. ODILI (2004) 8 NWLR PT 876) 481.
Now it is to be observed that the First schedule to the Electoral Act, has specified in clear terms what an election petition shall contain in paragraph 4 thereof. The relevant provision applicable for this only issue in the appeal is Paragraph 4 (5) (i) (a) and (b). It states thus:-
(5)(i) The election petition shall be accompanied by?
(a) A list of the witnesses that the petitioner intends to call in proof of the
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petition.
(b) Written statements on oath of the witnesses.
Therefore, every election petition shall contain not only the list of witnesses he intended to call in proof of his Petition but also the written statements of the witnesses to be called. This is mandatory and where a Petitioner fails to adhere to the requirements stated on Paragraph 4(5)(i)(a) and (b) of the First Schedule, then his petition shall not be accepted for filing by the secretary of the tribunal.
Paragraph 41 (1) and (3) of the First Schedule also reinforced the above quoted provision. The said provision provides that:
41.(1) Subject to any statutory provision or any provision of these paragraphs relating to evidence, any fact required to be proved at the hearing of a petition shall be proved by written deposition and oral examination of witnesses in open Court.
(2)- – – – –
(3) There shall be no oral examination of a witness during his evidence in chief except to lead the witness to adopt his written deposition and tender in evidence all disputed documents or other exhibits referred to in the deposition.
The above provision seems to limit proof of
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oral facts only by filing of written statement from the witness and oral examination in chief is not allowed save for the witness to tender in evidence all disputed documents or other exhibits referred to in the deposition. But the question here is whether the above provision applies to all witnesses without a distinction. A witness is one who testifies in a cause before a Court or tribunal and in a general sense witnesses includes all persons from whose lips testimony is extracted in any Judicial proceeding. See TEJUMADE & ANOR V. OLANREWAJU & ORS (2015) LPELR 25985 and IDOWU V. OLORUNFEMI & ORS (2013) LPELR 20728.
The witness whose testimony the trial tribunal disallowed was on subpoena. The power to issue subpoena to an individual is vested in all our Courts including the trial tribunal. The subpoena in short is an order of the Court or tribunal commanding a named individual in the name of the president of the Federal Republic of Nigeria to attend Court to either testify in any petition, or to produce and tender documents or both. Where the subpoena is to give oral evidence it is referred to as subpoena ad testificandum; where a named
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person is to produce and tender document, it is called subpoena duces tecum and where it is both for the purpose of testifying and tendering documents, it is called subpoena duces tecum ad testificandum.
In the appeal before us, clearly it is subpoena ad testificandum. See P285A of the Record of Appeal and AKINTAYO V. JOLAOYE (2010) LPELR 3688.
Now, the Respondent was all unanimous in their strong opposition to fielding the witness on subpoena on the ground that the proposed witness did not depose to a written statement. This Court has judicially interpreted the provisions in several cases. First, in LASUN V. AWOYEMI & ORS (2009) LPELR 11912 @ 35; Ogunbiyi, JCA (as he then was) held that:-
By the provision of the Practice Direction, it is expected that the written depositions of all witnesses ought to be attached to the petition. It is pertinent to re-state that the party to whom the subpoena in question was issued is a respondent. It cannot therefore be within the contemplation of the provision of the Practice Direction that the respondent should sign a witness statement or deposition on behalf of the Petitioner whose allegation of
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irregularities was against the said party. In other word 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.?
Also, in IBRAHIM V. OGUNLEYE & ORS (2010) LPELR 4556 @ 26; Adumein, JCA held that:-
I agree that the Court and Tribunal Practice Directions require that witnesses to an election petition should frontload their written depositions with the petition or the reply thereto as the case may be. However having regard to the facts and circumstances of this case, the tribunal unfairly trivialized and slaughtered Justice on the altar of legal technicalities by refusing a subpoenaed official of the Independent National Electoral Commission (INEC) to be sworn in and therefore, to give testimony in the election petition.?
In his concurring Judgment; Ngwuta, JCA (as he then was) held that:-
?The tribunal was satisfied on the application of the Appellant that the subpoena be issued and having issued same, the
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tribunal breached the Appellant?s right to fair hearing by not allowing the witness on its subpoena to give sworn evidence on behalf of the Appellant. The tribunal did not issue the subpoena in error. It cannot approbate and reprobate.?
Finally in IBE V. IGBOKWE & ORS (2012) LPELR 15351 @; Abba-Aji, JCA (as he then was) held that:-
“Paragraph 41(1) of the 1st Schedule to the Electoral Act provides that subject to any statutory provision or any provision of these paragraphs relating to evidence, any fact required to be proved at the hearing of the petition shall be proved by written deposition and oral examination of witnesses in open Court.? Paragraph 41 (1) of the 1st Schedule is made subject to any statutory provision which include the Evidence Act. 2011. DW3 was commanded to come to court under subpoena Exhibit 17 to give evidence and to produce documents and the Evidence Act allowed him to testify. A person summoned with subpoena ad testificandum is one summoned to testify and will therefore be required to go into the witness box and testify on oath or affirmation.?
See OMIDIRAN V. ETTE (2010) LPELR 9160;
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ADEYELA V. ADEYEYE & ORS (2012) LPELR 3618 and OLANIYAN V. OYEWOLE (2008) 5 NWLR (PT 1079) 114.
It is to be noted that at the pretrial conference, learned counsel for the Appellant informed the tribunal that they are calling 10 witnesses and 2 witnesses will be on subpoena. The tribunal in its pretrial report granted the Petitioners liberty to call 12 witnesses out of which 2 will be on subpoena. See P291 of the Record of Appeal. The tribunal subsequently issued a subpoena on one Yusuf Mohammed, a supervisory presiding officer. See P285A of the Record. Now, having granted the Appellants request to call 2 witnesses on subpoena and also having issued a subpoena to the witnesses, the tribunal seems to be blowing hot and cold in disallowing the subpoenaed witness from testifying.
Importantly, by making an application for a subpoena to issue to the witness, it shows that the Appellants who are desirous of proving their case or an aspect of it from the subpoenaed witness cannot ordinarily bring such witness in Court on their own; hence the application for subpoena. The witness though available cannot be said to be a willing and voluntary witness
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and having his deposition readily available to file along with the Petition may not be possible, more so the witness on subpoena is an adversary. Until he obeys the subpoena and appears in Court the Appellant may not have real access to the witness and in all these circumstances, deposing to a written statement becomes an impossible task. I believe, neither the Electoral Act nor the 1st schedule thereto readily contemplated this scenario. It is also my belief that the aim of the Electoral Act is not to make the onerous task of proving the petition on the petitioner any heavier, by insisting that the Petitioner shall frontload the written statements of all witness including adversaries that are on subpoena.
Although the Respondent?s have in their various briefs strongly attacked the authorities cited by the Appellants in support of their argument on grounds that the authorities are not precedent that ought to be followed by this Court, but the law is trite that for an earlier authority to serve as a precedent and thus binding, the facts and the law must be similar. However, the fact here means significant or relevant facts to the resolution of the
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issue to be determined. See OGBA V. VINCENT & ORS (2015) CAR 130 @ 157. In the instant appeal, the issue is whether the tribunal was right in disallowing a subpoenaed witness from testifying and all the authorities cited by the Appellants are similar to the issue before this Court. The authorities are relevant and followed by this Court.
?Conclusively, by disallowing the subpoenaed witness from testifying, the Appellants? right to fair hearing is in breach. Having issued the subpoena, the trial tribunal ought to allow the witness on subpoena to proceed and testify. Having failed to, the tribunal was in grave error. The ruling of the tribunal disallowing the subpoenaed witness from testifying is wrong and it is hereby set aside. The subpoenaed witness is entitled to be heard so as to give effect to the subpoena issued by the tribunal. The appeal is meritorious and it is allowed. The ruling of the tribunal of 01/08/2019 disallowing the subpoenaed witness from testifying is hereby set aside and the tribunal is hereby ordered to allow the subpoenaed witness to testify in line with the subpoena issued by the
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tribunal.
ISAIAH OLUFEMI AKEJU, J.C.A.: I read the Judgment of my learned brother, ABUBAKAR MUAZU LAMIDO, JCA before it was delivered. I agree that the appeal has merit and it is allowed by me. I abide by the consequential orders.
BITRUS GYARAZAMA SANGA, J.C.A.: I have the privilege of reading a draft of the judgment just delivered by my learned brother, ABUBAKAR MUAZU LAMIDO JCA. I agree with and adopt the finding in the lead judgment which led to the conclusion that this interlocutory appeal is meritorious and it is hereby allowed. I abide by the Order as to costs.
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Appearances:
O.M. Afolabi, Esq. with him, M. T. Saheed, Esq., A.A. Ahmed, Esq. and M.O. Sahid, Esq.For Appellant(s)
T.U. Nwachukwu, Esq. with him, D.C. Amadi, Esq. for the 1st Respondent.
Kelechi Nwuzi, Esq. with him, A. Chindah, Esq. for the 2nd Respondent.
Wale Blogun, Esq. with him, N. E. Chukwu, Esq. for the 3rd Respondent.For Respondent(s)
Appearances
O.M. Afolabi, Esq. with him, M. T. Saheed, Esq., A.A. Ahmed, Esq. and M.O. Sahid, Esq.For Appellant
AND
T.U. Nwachukwu, Esq. with him, D.C. Amadi, Esq. for the 1st Respondent.
Kelechi Nwuzi, Esq. with him, A. Chindah, Esq. for the 2nd Respondent.
Wale Blogun, Esq. with him, N. E. Chukwu, Esq. for the 3rd Respondent.For Respondent
