LawCare Nigeria

Nigeria Legal Information & Law Reports

SENATOR IFEANYI ARARUME & ANOR v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ANOR (2019)

SENATOR IFEANYI ARARUME & ANOR v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ANOR

(2019)LCN/13767(CA)

In The Court of Appeal of Nigeria

On Friday, the 23rd day of August, 2019

CA/OW/EPT/GOV/02/2019

 

JUSTICES

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria

MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria

ABDULLAHI MAHMUD BAYERO Justice of The Court of Appeal of Nigeria

Between

1. SENATOR IFEANYI ARARUME
2. ALL PROGRESSIVES GRAND ALLIANCE Appellant(s)

AND

1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
2. HON. EMEKA IHEDIOHA
3. PEOPLES DEMOCRATIC PARTY (PDP) Respondent(s)

RATIO

WHETHER OR NOT ELECTION PETITIONS ARE SUI GENERIS

It has been held by the Supreme Court and this Court, that election disputes or Petitions are sui generis, quite distinct from ordinary civil proceedings, that is why they are referred to as sui generis. See Abubakar V. INEC (2004)1 NWLR (Pt.854) 207; Jemide V. Harriman (2004) ALL FWLR (Pt.233)1765 at 1778 and Ugba & Ors V. Suswan & Ors (2012) LPELR ? 9726 (SC). Thus in the case of Mohammed & Anor V. Abdulaziz & Ors (2008) LPELR ? 4496 (CA) Okoro, JCA (as he then was) said: “As has been stated in plethora of decisions of both this Court and the Apex Court, election matters are sui generis and not normal or ordinary civil matters. That is why special enactments are often made to regulate their rules and procedures. PER TSAMMANI, J.C.A.

WHETHER OR NOT THE PROCEDURE LAID DOWN FOR THE CONDUCT OF ELECTION DISPUTES MUST BE STRICTLY COMPLIED WITH

Furthermore, due to its peculiar nature, the procedure laid down for the conduct of election disputes are always strictly observed and complied with, such that slight breaches and defaults in complying with such procedural steps which would otherwise be condoned, waived or cured in ordinary civil cases or proceedings, would result in fatal consequences to the Petition or other steps taken therein. See Kallamu V. Gurin (2003)16 NWLR (Pt.847) 493; Gebi V. Dahiru & Ors (2011) LPELR ? 9234 (CA) and Yinusa & Anor V. Lafiagi & Ors (2017) LPELR ? 42357 (CA). See also PDP & Ors V. Ezeonwuka & Anor (2017) LPELR ? 42563 (SC). PER TSAMMANI, J.C.A.

DOCUMENTS TO BE ACCOMPANIED BY AN ELECTION PETITION

This then brings to the fore, the provision of Paragraph 4(5) of the First Schedule to the Electoral Act, 2010 (as amended) which stipulate that:
?4(5)(i). The election Petition shall be accompanied by-
(a) a list of witnesses that the Petitioner intends to call in proof of the Petition;
(b) Written statements on oath of the witnesses, and
(c) Copies of list of ever document to be relied on at the hearing of the Petition.
(ii) A Petition which fails to comply with Sub-paragraph(1) of the paragraph shall not be accepted from filing by the secretary.
It is clear therefore that written statement on oath of intended witness in proof of a petition shall be frontloaded. This invariably will come along with the list of those intended witnesses. In the instant case, the name of Ama Ibom Agwu was not listed at the inception of the Petition nor his deposition frontloaded. The law therefore is that the deposition of a witness must accompany the Petition at the time of filing of the Petition. In other words, the written statement on oath of an intended witness must be filed along with the petition. Thus any written deposition of a witness not filed along with the petition will not be countenanced by the Court or Tribunal. See Oraekwe & Anor. V. Chukwuka & Ors (2010) LPELR- (9128) (C.A); Chukwuma V. Nwoye & Ors (2009) LPELR ? 4997 (CA). PER TSAMMANI, J.C.A.

HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment): This appeal is against the Ruling of the Governorship Election Petition Tribunal, Imo State delivered on the 11th day of July, 2019.

On the 9th day of March, 2019 Election was conducted by the 1st Respondent (Independent National Electoral Commission) to elect the person to occupy the office of the Governor of Imo State of Nigeria. The 1st Appellant, 2nd Respondent and others were candidates at the Election. The 1st Appellant contested the election on the platform of the 2nd Appellant while the 2nd Respondent contested on the ticket of the 3rd Respondent. At the close of the election, the 1st Respondent declared the 2nd Respondent as the winner of the election. Being unhappy with the result of the election, the Appellants as Petitioners filed a Petition before the Tribunal aforementioned. Pleadings were duly filed and the pre-hearing concluded but at the hearing of the Petition, the Petitioners fielded the PW2 who was before the Tribunal on subpoena ducestecum and ad testificandum. When the witness sought to adopt his written statement made on Oath, the 2nd

1

Respondent?s counsel raised objection to the said PW2 adopting his written statement on oath on the ground that the statement was made after the period within which to file the petition had lapsed. After listening to arguments of counsel, the trial Tribunal up held the objection thereby refusing to allow the said witness adopt the written statement on oath. It is against that decision that this appeal has been filed.

The Notice of Appeal contained in pages 601 ? 606 of the record of appeal was wrongly dated the 11/2/2019 but filed on the 12/7/19. It contains five(5) grounds of appeal. Thus, as required by the Rules and Practice Directions of this Court, the parties filed and exchanged Briefs of Arguments. The Appellants? Brief of Arguments was dated the 23/7/19 and filed on the 25/7/19. Therein, four(4) issues where distilled for determination as follows:
a) Whether the learned trial Judges of the Tribunal were right when they barred or prevented the Appellants? witness who was summoned pursuant to a subpoena ducestecum and subpoena ad testificandum from testifying, more so when the said subpoena was neither varied nor set

2

aside?(Grounds 1 and 2)
b. Whether the learned trial judges did not misdirect themselves in law when they relied on the provisions of Order 3 Rule 3(1) (e) as well as Civil Form 1 (A) of the Federal High Court (Civil Procedure) Rules, 2009 to prevent the Appellants? witness from testifying when the sanction prescribed for non-compliance in those provisions of the said Rules do not support barring a subpoenaed witness from offering his testimony to a Court or Tribunal as the case may be? (Ground 3)
c. Whether the learned trial judges did not err in law when they raised suo motu the issue of non-compliance with the issuance or delivery of Form I(A) a foresaid pursuant to Order 3 Rule 3(1) of the Federal High Court (civil procedure) Rules, 2009 and decided on it without first calling on parties to address the Tribunal on the issue so raised suo motu and which thereby occasioned a miscarriage of justice by denying the petitioners the opportunity to present a part of their petition through the subpoenaed witness? (Ground 4)
d. Whether the learned trial judges did not err in law when they neither held themselves bound by the decision of the Court

3

of Appeal in Ogba V Vincent (2015) 10 CAR 130 and Kindred decisions in that direction nor held that the said decision was inapplicable, but nevertheless, prevented the Petitioners? from testifying and thereby denying the Petitioners their right to fair hearing? (Ground 5)

The 1st Respondent?s Brief of Arguments settled by Chris Ahumibe Esq., was dated the 30/7/19 and filed on the 31/7/19.
Therein, only one (1) issue was raised for determination as follows:
Whether the learned Justices of the Tribunal were right in refusing to countenance the witness deposition of Ama Ibom Agwu who was an a subpoena filed on the 8th of July, 2019 outside the time limited for presenting an election petition?

In the 2nd Respondent?s brief of Argument dated the 27/7/19 and filed on the 29/7/19, two(2) issues were formulated for determination as follows:
1. Whether the learned Judges of the Tribunal were correct when they held that the subpoenaed witness cannot rely on a witness statement filed after the time limited for presentation of the petition? (Grounds 1,2 and 5)
2. Whether the learned Judges of the Tribunal were correct when they

4

held that the Petitioners failed to satisfy the formal prerequisites for the Tribunal to receive the statement on Oath of the subpoenaed witness. (Grounds 3 and 4)

The 3rd Respondent adopted all the issues raised by the Appellants as the issues to the determination in this appeal.

The Appellants then responded to the issues canvassed by all the Respondents by filing Reply Briefs thereto. After a careful consideration of the issues raised by the parties, I propose to resolve the appeal on the issues distilled by the Appellants. I shall however treat all the four (4) issues raised as one.
?
Before I proceed, I find it necessary to first treat a Motion on Notice filed by the 3rd Respondent. The said Motion was dated and filed on the 29/7/2019. Therein, the 3rd Respondent/Applicant prayed for:
1) An Order of this Honourable Court striking out grounds 1,2, 4 and 5, and particular B under Ground 3 of Appeal in the Notice of Appeal, subject matter of the Appeal for incompetence.
2) An Order of this Honourable Court striking out all arguments made pursuant to grounds 1, 2, 4 and 5 of the Grounds of Appeal and particular B of Grounds of Appeal

5

sought to be struck out, particularly, arguments made in respect of issues A, C and D and paragraphs 6.20 and 6.21 of Appellants? Brief of Argument.
3) An Order of the Honourable Court striking out paragraphs 6.08 ? 6.09 of the Appellants? Brief of Argument as same are not derived from any Ground of Appeal.
4) AND FOR SUCH or further Ordersas this Honourable Court may deem fit to make in the circumstance.

The Grounds upon which the reliefs sought are predicated are as follows:
1) Grounds 1, 2, 4 and 5 of the Grounds of Appeal of the Appellants are not supported by particulars.
2) Particular B under Ground 3 of the Grounds of Appeal is not related to the said Ground 3
3) Issues A & C were said to have been distilled from Grounds 1, 2 and 4 of the Grounds of Appeal which Grounds are defective.
4) The allegation of non-determination of the case of Ogba V. Vincent (2015) CAR 130 and the Kindred decisions where found to be true, did not adversely affect the Appellants.
5) Arguments in paragraphs 6.07, 6.08, 6.09, 6.20 and 6.21 are defective.
6) It is in the interest of Justice that the Application succeeds.

6

The motion is supported by an Affidavit of 6 paragraphs deposed to by one Nneka Nkama, a legal practitioner, one of the Counsel involved in the prosecution of the 3rd Respondent?s case in this appeal. A written address was filed along with the Motion on notice. In response, the Appellants filed a counter-Affidavit of 13 paragraphs deposed to by one Emmanuel Nwosu, the Imo State Organizing Secretary of the 2nd Appellant. Though not ordered to be filed, I would refer to the submissions of learned Senior Counsel for the 3rd Respondent/Applicant in the written Address.

On the Motion therefore, learned Senior Counsel for the 3rd Respondent/Applicant drew our attention to paragraphs 1, 2, 4 and 5 of the Notice of Appeal and particular B of Ground 3 of the Notice of Appeal. The case of Jude Ogbonna V. Aghaegbunma Ezewuzie (2013) LPELR ? 222O8 (CA) was cited to submit that those Grounds have no particulars which must have guided the Respondents on what the exact complaint of the Appellants is all about. That by restricting their complaints to errors in law and misdirection, the Appellants offended the Rules of this Court in the

7

formulation of Grounds of Appeal. The cases of Lasun V. Awoyemi (2009)16 NWLR (Pt.1168) 513 at 550; Peoples Democratic Party V. Chief Timipre Martin Sylva (2016) LPELR ? 42559 (SC) and Odugbemi & Anor V. Shanusi & Ors (2018) LPELR ? 44868 (CA) where cited in support.

Learned Senior Counsel for the 3rd Respondent/Applicant went on to submit that, the issues formulated therefrom are equally incompetent. As regards particular B of Ground 3, learned Counsel contended that, the said particular does not relate to Ground 3. We were thus urged to strike out the said particular B of Ground 3 for not being in tandem with the said Ground. The case of Adebayo Animashaun V. The State (2010) LPELR ? 9022 (CA) was cited in support.

Now, Order 7 Rule 2(2) of the Court of Appeal Rules, 2016 stipulate that:
?Where a ground of appeal alleges misdirection or error in Law, the particulars and the nature of misdirection or error shall be clearly stated.”?
It would be seen therefore that a Ground of Appeal alleging misdirection or error in law must state the particulars of such misdirection or error in law. However, it is not

8

mandatory that such Ground of Appeal must contain particulars for it to be valid. Thus, where the Ground of Appeal is clear and unambiguous, and the complaint therein require no further elucidation, it would not be necessary to state any particulars in a separate paragraph. For such a situation, it will suffice where the particulars can be read or deduced from the Ground of Appeal itself. See Global Transport Oceanica S.A. & Anor V. Free Enterprises Nig. Ltd (2001) 5 NWLR (Pt.796) 426 at 439 Paras. A ? B; Arinze V. Afribank (Nig.) Plc (2000)7 NWLR (Pt.665) 383. Having carefully perused Grounds 1, 2, 4 and 5 of the Grounds of Appeal, I am of the view that those Grounds are self-explanatory and need no further explanation. They are explicit enough to convey to the Respondents and indeed the Court, what the complaint of the Appellants from those Grounds are all about.
?
The complaint of the 3rd Respondent on particular B of Ground 3 is without substance. A careful study of Ground 3 and particular B thereof, reveal clearly that the said particular B relate to the said Ground 3. It is therefore my view that this Motion filed by the 3rd Respondent on the

9

29/7/19 lacks merit. It is accordingly dismissed.

Now on the main appeal, I had earlier resolved that the appeal shall be determined on the issues distilled by the Appellant and that the issues shall be treated as one.

Arguing on issue one, learned Senior Counsel for the Appellants contended that the trial Tribunal was wrong when it barred or prevented the Appellants? witness who was before it pursuant to subpoena duces tecum and subpoena ad testificandum when testifying before it, particularly when the said subpoena were neither varied nor set aside. That what was in dispute before the Tribunal was whether the said witness could testify on Oath by adopting his written statement on Oath deposed to by him on the 8/7/2019 pursuant to the subpoena ad testificandum issued on him by the Tribunal. It was thus submitted that, where a witness has been summoned by way of subpoena ad testificandum by a Court or Tribunal, and such witness appears in Court in obedience to such subpoena, the Court or Tribunal cannot prevent him from testifying. The case of Omidiran V. Etteh & 343 Ors (2011) 3 NWLR (Pt.1232) 471 at 501 Paras. C-G was cited in support.<br< p=””

</br<

10

Learned Counsel for the Appellants went on to contend that, in preventing the said witness from testifying; the Tribunal held that the Appellant did not seek leave to file the said witness statement on Oath. Referring to the Ruling of the Tribunal at page 596 of the Record of Appeal, learned Senior Counsel submitted that, it is certain that the Tribunal did not appreciate the meaning, intendment and scope of a subpoena ad testificandum. The case of Tunde Ishaq & Ors V. Okanlawon Soniyi (2009) All FWLR (Pt.498) 347 at 371 Paras C ? E was then cited to further submit that a subpoena is tantamount to leave granted by the Tribunal for the witness hitherto not listed in the Petition to testify out of the time for filing the Petition. That, in their attempt to mislead the Tribunal, the Respondents cited and relied in the cases of Ogba V. Vincent (2015) Supra and Adenigba V. Omoworare & Ors (2015) LPELR ? 40531 (CA). That those cases are not relevant as the issue for determination before the Tribunal arose after the Tribunal had issued and served a subpoena ad testificandum on the witness.
?
It was further submitted by learned Counsel for the

11

Appellants that, the trial Tribunal erred in law when they raised suo moto, the issue of non-compliance with the issuance or delivery of Form I(A) pursuant to Order 3 Rule 3 of the Federal High Court (Civil Procedure) Rules, 2009 and decided on same without first calling on the parties to address it on the issue so raised suo motu. The cases of Uzoho V. National Council on Privatization (2007) All FWLR (Pt. 394) 370 and UBN Plc V. Awmar Properties Ltd (2019) All FWLR (Pt.987) 903 at 931 Paras. D ? H were then cited to submit that this occasioned miscarriage of justice to the Appellants as they were denied their right to fair hearing.

It is also argued by the Appellants that, the trial Tribunal misdirected itself in law when it relied on the provisions of Order 3 Rule 3(1)(e)(i) as well as Civil Form I(A) of the Federal High Court (Civil Procedure) Rules, 2009, to prevent the Appellants witness from testifying when the sanctions provided for non-compliance with those provisions of the said rules did not support barring a subpoenaed witness from testifying. Secondly, that it is not possible to frontload a written statement on Oath of an intended

12

witness whose name is not known to the Petitioner at the time of filing the Petition. The cases of Olaniyan V. Olawole (2008) All FWLR (Pt.399) 503 at 524 Para D and Lasun V. Awoyemi (2009)16 NWLR (Pt.1168) 513 at 543 were cited in support and to further submit that the Federal High Court (Civil Procedure) Rules, 2009 has been repealed by the Federal High Court (Civil Procedure) Rules, 2019 which came into force in May, 2019. It was thus submitted that the trial Tribunal was therefore wrong in relying on the said repealed Rules to prevent the Appellant from testifying.

On the decision of Ogba V. Vincent (2015) 10 CAR 130, learned Senior Counsel submitted that, the trial Tribunal erred in law when they held themselves neither bound by the decision of the Court of Appeal in that case nor did they hold that those decisions were inapplicable, yet it prevented the witness from testifying, thereby denying the Petitioners their right to fair hearing. Furthermore, that the failure of the trial Tribunal to either agree or disagree with the authority cited by Counsel in the Course of the argument as to whether or not the Petitioner?s witness would be allowed

13

to adopt his written statement oath, is a perversion of Justice leading to denial of fair hearing to the Appellants. That in any case, the case of Ogba V. Vincent (supra) had nothing to do with a subpoenaed witness but with leave of the Petitioner to call additional witness after the period for the filing of the Petition had expired. We were urged to hold that the Tribunal?s failure to either agree or disagree with the cases cited has occasioned a gross miscarriage of Justice to the Appellants.

In response, learned Counsel for the 1st Respondent contended that on the 09/7/19 when the written deposition of Ama Ibom Agwu was filed, the time limited for the Appellants to bring a Petition, front-load the witness depositions of all its witnesses had lapsed. That the essence of frontloading witness statements and other accompanying documents was not to take the other party by surprise considering the sui generis nature of election petitions. The case of Oke V. Mimiko (2014)1 NWLR (Pt.1358) (No.1) 225 at 261 -263 was cited in support and to further submit that amendments to any Petition or the calling of additional witnesses will not be entertained after

14

the statutory time limited for the filing of the Petition had expired.

Learned Counsel for the 1st Respondent also contended that a look at the deposition of the witness sought to be introduced by the Appellants in the guise of subpoena ad testificandum will reveal that same contained weighty allegation which would require responses by the Respondents. That such evidence which have been deposed to at the time of filing the Petition rather than after the time allowed for the filing of the Petition. That such evidence sought to be led through the witness would go to the root of the Petition which evidence could only be laid before the Tribunal at the time of filing the Petition, and that such evidence could not be led on the guise of a subpoena ad testificandum. It was accordingly submitted that the intention of the Appellants in filing the witness deposition on the 8/7/19 after the time allowed by law for doing so, amounted to adding to the substance of the Petition.
?
Learned Senior Counsel for the 1st Respondent went on to submit that, the issue is therefore not a matter of subpoena directed at a person to attend Court and give evidence, that, a

15

subpoenaed witness is not a witness of the Court but it is issued at the instance of a party to the proceedings. The case of Tejumade V. Olanrewaju (2015) LPELR ? 25985 (CA) was cited in support. That a witness summoned by the Court is usually called at the instance of the Court to clarify an issue. The case of Bellgam V. Bellgam (1965)1 All NLR was cited in support. It thus submitted that the argument of the Appellants that a subpoenaed witness is a witness of the Court is erroneous.
?
It was further submitted by learned Senior Counsel for the 1st Respondent that, paragraph 41(8) of the First Schedule to the Electoral Act, 2010 (as amended) prevents the use of any document in evidence at the hearing of a Petition unless it has been listed or filed along with the Petition or Reply in the case of reply to the petition unless the leave of Tribunal is sought and obtained. That it does not follow that once a witness is summoned on subpoena he must offer his evidence whether or not his written deposition was filed along with the Petition after the time allowed for presenting the election petition. That once a subpoena is issued on the application of a party

16

to the petition, the provisions of Paragraph 4(5) of the First Schedule to the Electoral Act must be fully complied with, failure of which no Tribunal is obligated by law to accept any evidence of a witness in subpoena which was filed outside the statutory time allowed by law. That in the circumstances, it would be erroneous to find that the opponent must first seek to set aside the subpoena before such evidence can be jettisoned.

Learned Counsel for the 1st Respondent urged us to disregard the cases of Haske V. Magaji (2009) All FWLR (Pt. 461) 227; Afegbai V. AG Edo State (2001)14 NWLR (Pt.733)425;Omidiran V. Ette (2011)3 NWLR (Pt.1232)471 and Ishaq V. Soniyi (2009) All FWLR (Pt.498) 347 cited by the Appellants, as the issue before the Tribunal was whether the Appellants could introduce fresh or Additional evidence under the guise of a subpoenaed witness at that stage of the proceedings. The case of Ogba V. Vincent (2015) LPELR ? 40719 (CA) was cited in support. That in the Ogba V. Vincent case cited above where, this Court relied on Section 151(1) and paragraph 41 of the 1st Schedule to the Electoral Act, 2010 (as amended), and

17

Order 3 Rule 3(1)(e)  of the Federal High Court (Civil Procedure) Rules, 2009 (impari material with Order 3 Rule 1(e) of the Federal High Court (Civil Procedure) Rules, 2019), on the backdrop of the 1999 Constitution, to conclude that the time limited for the presentation of an election petition and hearing/determination of such petition cannot be defended by any other law or enabling provision.

Learned Senior Counsel for the 1st Respondent then contended that, allowing the said witness to adopt his written statement on Oath filed on the 8/7/2019 would have caused substantial in justice to the Respondents who would have no opportunity to offer any evidence to rebut the evidence tendered through the said witness. That the time limited for the filing of the said deposition having expired, the trial Tribunal was right when it prevented the said witness from adopting the deposition.
?
Learned Senior Counsel for the 2nd Respondent on the other hand contended that, the issue before the trial Tribunal was not whether a subpoenaed witness can be prevented from testifying, but, whether a Petitioner can under the guise of a subpoena on a witness, introduce crucial facts not only after

18

the effluxion of the time prescribed for filing of the Petition, but in the course of hearing of the Petition. That, it is common ground that as at 9/7/19 when the witness statement of Ama Ibom Agwu was sought to be introduced, the time limited for presentation of the Petition had long lapsed; and the period for the pre-hearing had also elapsed. That, the Appellant who frontloaded the evidence of only four(4) witnesses had already called one of them. That it follows that, at that time the Respondents had fully joined issues with the Appellants on the Petition.

Learned Senior Counsel for the 2nd Respondent then drew our attention to paragraphs 1 ? 13 of the said witness deposition, which he urged us to examine, and proceeded to contend that those depositions touch on the heart of the Petition. That in such a circumstance, it ought to have been presented at such a time as would enable the Respondents to respond within the time statutorily allotted for doing so. That, the issue is therefore not a matter of subpoena being an order directed at a person to attend Court for the purpose of rendering evidence. That, in the circumstance, a person summoned on a

19

subpoena at the instance of a party is not the witness of the Court, therefore, it does not follow that once summoned to appear, the person must willynilly offer evidence.

It was thus contended by learned Senior Counsel for the 2nd Respondent that, in the instant case, the competence of the subpoenaed witness to testify must be weighed against the time constraint prescribed by the Constitution, as well as the provisions of the Electoral Act and its Schedule for the filing and determination of Election Petitions. That, this is more so, as the crux of the matter was whether the Appellants would introduce fresh or additional evidence under the shroud of a subpoenaed witness at that stage of the proceedings. Furthermore, that the cases cited and relied on by the Appellants were decided under a dispensation which did not constitutionalize and regiment the time constraints in election matters. Referring specifically to the decision of the trial Tribunal at pages 593 ? 594 of the record of appeal, learned senior counsel submitted that, the case of Ogba v. Vincent (supra) ably support the decision of the trial Tribunal. That in that case, the trial Tribunal

20

rightly applied the decision inOgba V. Vincent (supra) and that, the Tribunal was not bound to specifically state that it was bound by that decision.

Learned Senior Counsel for the 2nd Respondent went on to submit that the law has made provision for an instance when evidence need not accompany the Petition. That such instance is the evidence of a subpoenaed witness. That, the case of the Respondents is that, where a party proposes to rely on evidence of such a witness by way of witness statement, he must file such a statement, not necessarily along with the Petition, but within the time limited for the presentation of the Petition, so that the Respondents will have the full compliments of the case of the Petitioner.
?
Learned Senior Counsel for the 2nd Respondent then contended that, the Appellants misunderstood the decision of the Tribunal. That the Tribunal merely observed that, the pre-requisite for securing the evidence of a witness on subpoena was not fulfilled; and that the service of Form 1(A) operates as a condition precedent in view of the decisions inDrexel Energy & Natural Resources Ltd V. Trans International Bank Ltd (2008)18 NWLR

21

(Pt.1118) 388 and Niger care Dev. Co. Ltd & ar. V. Adamawa State Water Board (2008)9 NWLR (Pt.1093) were cited in support. That, the decision of the trial Tribunal therefore, was to the effect that the Appellants failed to observe the process and therefore failed to fulfill a condition precedent for the validity of the witness statement. Furthermore, that in the instant case, the said witness statement was made without service of the requisite Form 1(A) which therefore belies the presumed neutrality of the intended witness. That, the issue therefore is at what point a party may obtain the voluntary deposition from his adversary, which in the instant case, must be within the time prescribed by law for doing so. That, this therefore underlies the necessity of service of Form 1(A).

Learned Senior Counsel for the 3rd Respondent contended that the trial Tribunal was right when it barred Mr. Ama Ibom Agwu from testifying, notwithstanding that he was a subpoenaed witness. The case of Haske V. Magaji (2009) All FWLR (Pt.461) 227 was cited to submit that, the trial Tribunal that signed the subpoena inviting PW2 on the application of the Appellants did not

22

violate the said subpoena. That, once the witness appeared before the Tribunal his evidence became subject to the rules of evidence and the provisions of the First Schedule to the Electoral Act (supra). In other words, that the subpoena achieved its purpose when the said witness appeared before it while the business of the day was to follow due process of the Court.

Learned Senior Counsel for the 3rd Respondent contended that, the subpoenaed witness was not the witness of the Tribunal as the subpoena was issued on the application of the Appellants. That the case of Ogba V. Vincent (supra) dealt with the propriety of employing the statement on Oath of the witness which was not filed within the time allowed by the Electoral Act, while the case of Omidiran V. Etteh (supra) was decided when the time prescribed for filing a Petition had not been constitutionalized and therefore, there was no strict compliance on issues bordering on the time limit for filing and determining an election petition. That in any case, the case of Omidiran V. Etteh (supra) was considered in the case of Ogba V. Vincent (supra) as the issues in both cases were the same revolving on

23

whether a statement on Oath (as in this case) or a document not frontloaded within the time prescribed for filing of the Petition can be employed in the prosecution of the Petition; which question the Court answered in the negative. The case of Osakwe V. F.C.E., Asaba (2010) 10 NWLR (Pt.1201) at 34 paras BC was cited in support.

Learned Senior Counsel for the 3rd Respondent went on to submit that, the issue of whether a subpoena amounts to leave of Court to file the witness statement on Oath introduced by the Appellant was not distilled from any Ground of Appeal. We were accordingly urged to strike out or discountenance such arguments as contained in paragraphs 6.07, 6.08 and 6.09 of the Appellants? Brief of Arguments.

It was further submitted by learned counsel for the 3rd Respondent that, the Tribunal did not reach its conclusion solely on the failure to satisfy the requirement of the Rules of Court. That the sole issue raised by the trial Tribunal was therefore, whether the Appellant can make use of a written deposition of an intended witness, filed after the time for doing so had already elapsed. That considering the entire facts therefore,

24

the Tribunal came to the conclusion that the PW2 be barred from testifying.

Learned Senior Counsel for the 3rd Respondent also argued that the trial Tribunal did not raise the issue of Form 1(A) and Order 3 Rule 3(1) of the Rules of the Federal High Court suo motu. Referring to pages 577 ? 578 of the record of appeal, it was contended that the issue was introduced by the 1st Respondent?s Counsel. That, the trial Tribunal only made findings based on the issues canvassed by the parties.

In conclusion, learned counsel for the 3rd Respondent submitted that the case ofOgba V. Vincent (supra) was well considered by the Tribunal in page 592 of the record of appeal. That, the Tribunal was at liberty to formulate their own issues in the determination of an application, which it did; and that the issue formulated and resolved by the Tribunal is exactly what was decided in Ogba V. Vincent (supra) as can be seen at page 594 of the record of appeal. That the reason why learned senior counsel for the 2nd Respondent referred to the case of Ogba V. Vincent (supra) was to buttress the fact that Ama Ibom Agwu whose statement was filed after the expiry of

25

the time limited for the filing of the Petition, cannot adopt same. It was then submitted that, the fact that such argument was upheld is evidence that the trial Tribunal made a determination on the said case. On that note, we were urged to discountenance the arguments of the Appellants and to dismiss the appeal.

Learned Counsel for the Appellants replied to each of the Respondent?s Brief of Arguments. I shall refer to the arguments therein where necessary in the determination of this appeal.

Now, the appeal herein relate to the decision of the Imo State Governorship Election Petition Tribunal. The appeal therefore relate to an election matter. It has been held by the Supreme Court and this Court, that election disputes or Petitions are sui generis, quite distinct from ordinary civil proceedings, that is why they are referred to as sui generis. See Abubakar V. INEC (2004)1 NWLR (Pt.854) 207; Jemide V. Harriman (2004) ALL FWLR (Pt.233)1765 at 1778 and Ugba & Ors V. Suswan & Ors (2012) LPELR ? 9726 (SC). Thus in the case of Mohammed & Anor V. Abdulaziz & Ors (2008) LPELR ? 4496 (CA) Okoro, JCA (as he then was) said:<br< p=””

</br<

26

?As has been stated in plethora of decisions of both this Court and the Apex Court, election matters are sui generis and not normal or ordinary civil matters. That is why special enactments are often made to regulate their rules and procedures. The provisions of the Electoral Act, 2006 and the Election Tribunal and Courts Practice Directions, 2007 for the conduct of matters before the various Election Tribunals nationwide are meant to be obeyed in order to speed up matters in Court. Proceedings in election matters are therefore not to be treated like the ordinary civil proceedings where certain lapses and irregularities may be cured by invoking certain Rules of Court?
It is obvious therefore that the sui generis nature of election petitions reflect both the peculiar nature of the reliefs sought, the time element and the proceedings adopted for the hearing and determination of such disputes. Furthermore, due to its peculiar nature, the procedure laid down for the conduct of election disputes are always strictly observed and complied with, such that slight breaches and defaults in complying with such procedural steps which would

27

otherwise be condoned, waived or cured in ordinary civil cases or proceedings, would result in fatal consequences to the Petition or other steps taken therein. See Kallamu V. Gurin (2003)16 NWLR (Pt.847) 493; Gebi V. Dahiru & Ors (2011) LPELR ? 9234 (CA) and Yinusa & Anor V. Lafiagi & Ors (2017) LPELR ? 42357 (CA). See also PDP & Ors V. Ezeonwuka & Anor (2017) LPELR ? 42563 (SC).

In the instant appeal, the Appellants who were petitioners in the trial Tribunal had on the 8/7/2019 filed the written deposition of one Ama Ibom Agwu, who was called to testify as the PW2. His presence before the Tribunal was consequent upon two summonses or subpoenae issued on the Chairman, Independent National Electoral Commission OR his representative. Both subpoena were dated the 8/7/19. The first subpoena was a subpoena duces tecum commanding the Chairman of INEC (1st Respondent) to appear and tender certain documents, while the other was ad testificandum; i.e. he was commanded to appear and testify or give evidence on behalf of the petitioners. The said Ama Ibom Agwu appeared, presumably on the instruction of the Chairman of INEC to

28

give evidence on behalf of the Petitioners. However, Mr. Ikepeazu, SAN of learned counsel for the 2nd Respondent who had no objection to the said witness producing the documents, objected to the said witness testifying in line with his written statement on Oath filed on the 8/7/2019 long after the close of pleadings. This then formed the crux of the issue in the decision leading to this appeal. For the determination of the objection the trial Tribunal observed that:
. It is our view that the pertinent question is whether the witness can rely on a written deposition filed on the 8th day of July, 2019 when this petition was filed on the 29th of March, 2019. This is the crux of the objection of the Senior Counsel for the 2nd Respondent, that the Petitioner cannot be allowed to rely on a witness deposition on Oath filed after time for doing so had already lapsed as that would amount to tactical amendment of the Petition
In resolving the issue, the trial Tribunal held first of all that though the witness was in Court pursuant to a subpoena ad testisficandum, he was nonetheless the witness of the petitioners, the subpoena

29

having been issued at the instance of the Petitioners. The Tribunal went on to observe, rightly too, that though the petitioners cannot be debarred from calling witnesses, no witness can testify without a witness deposition on Oath. The Tribunal then concluded that:
?We therefore hold that the Tribunal cannot countenance the witness statement on oath of Ama Ibom Agwu filed on the 8th day of July, 2019, having been filed out of time, without the leave of the Tribunal first had and obtained. The witness cannot therefore be sworn to give oral evidence.?
It is clear to me that the Tribunal was of the view that for any deposition of a witness to be countenanced, it must have been deposed to and filed within the time prescribed by law for doing so. This then brings to the fore, the provision of Paragraph 4(5) of the First Schedule to the Electoral Act, 2010 (as amended) which stipulate that:
?4(5)(i). The election Petition shall be accompanied by-
(a) a list of witnesses that the Petitioner intends to call in proof of the Petition;
(b) Written statements on oath of the witnesses, and
(c) Copies of list of every

30

document to be relied on at the hearing of the Petition.
(ii) A Petition which fails to comply with Sub-paragraph(1) of the paragraph shall not be accepted from filing by the secretary.
It is clear therefore that written statement on oath of intended witness in proof of a petition shall be frontloaded. This invariably will come along with the list of those intended witnesses. In the instant case, the name of Ama Ibom Agwu was not listed at the inception of the Petition nor his deposition frontloaded. The law therefore is that the deposition of a witness must accompany the Petition at the time of filing of the Petition. In other words, the written statement on oath of an intended witness must be filed along with the petition. Thus any written deposition of a witness not filed along with the petition will not be countenanced by the Court or Tribunal. See Oraekwe & Anor. V. Chukwuka & Ors (2010) LPELR- (9128) (C.A); Chukwuma V. Nwoye & Ors (2009) LPELR ? 4997 (CA). It therefore means that a written deposition filed by a witness not listed in the petition nor his deposition frontloaded cannot be countenanced by the Court or Tribunal

31

after the expiration of the time prescribed for the filing of the Petition. I think that is what the trial Tribunal decided in this case in line with the decision in Ogba V. Vincent (supra). This is clear from the issue identified and resolved by the Tribunal at pages 592 ? 593 of the record of appeal. It is therefore not correct as argued by learned senior counsel for the Appellants that the learned Judges of the trial Tribunal did not consider Ogba V. Vincent (supra). There is no doubt that the decision of the Tribunal took into consideration the pronouncement of the Court in that case. It therefore remains settled that, no witness can testify in an election petition without a witness deposition on oath, and which deposition must have been filed along with the petition.
The only exception to this position have been clearly set out in Paragraph 41(5) and (6) of the 1st Schedule to the Electoral Act, 2010 (as amended). This is in view of the provisions of Paragraphs 41(1) and (3) of the First Schedule to the Act which spelt out clearly that, any fact which is required to be proved at the hearing of a petition shall be proved by written deposition

32

and oral examination of the witnesses in Court. Furthermore, that there shall be no oral examination of a witness during his evidence in?chief except to be led to adopt his written deposition and to tender disputed documents. The combined effect of Paragraph 4(5) (i) & (ii) and 41(1) and (3) of the First Schedule to the Act is that no witness can testify in- chief before a Tribunal if he has not deposed to a written statement on oath which must necessarily have been filed along with the Petition. The only exception to that rule is as set out in Paragraph 41(5) and (6) of the First Schedule to the Act which stipulate that:
41(5) ?The tribunal or Court may, at or before the hearing of a petition order or direct that evidence of any particular fact be given at the hearing in such manner as may be specified by the order or direction.
b) The power conferred by Sub-paragraph (5) of this paragraph extends in particular to ordering or directing that evidence of any particular fact be given at the trial ?
a) by statement on oath of information or belief;
b) by the production of documents or entries in books, or
c) in the

33

case of a fact which is of common knowledge either generally or in a particular district by the production of a specified newspaper which contains a statement of fact.?
It appears to me that the above cited provisions have given power to the Court or Tribunal, to on its own motion direct certain person to appear before it and give evidence of particular fact or facts by statement on oath or to appear and tender certain documents. Where such witness is summoned pursuant to Paragraph 41(5) and (6) of the First Schedule to the Act, is of no doubt the witness for the Court or Tribunal.
Learned Counsel for the Appellants has argued strenuously that, the PW2 was before the Court on a subpoena, therefore, the Tribunal could not turn around to prevent him from testifying. It is not disputed that the said witness was before the Court on a subpoena ad testificandum but, it must be realized that the witness was summoned on the application of the Appellants. He was not summoned by the tribunal in the exercise of their powers pursuant to Paragraph 41(5) and (6) of the First Schedule to the Electoral Act. He was therefore, for all intents and purposes,

34

witness for the Appellants. In that respect, his written statement on oath was subject to the requirements of the law as stipulated in Paragraph 4(5) and 41(1) and (3) of the First Schedule to the Electoral Act (supra). The trial Tribunal realized that when it held at page 593 of the records of appeal as follows:
?The subpoena was issued to the witness upon application by the Petitioners and the witness is commanded in the name of the President of the Federal Republic of Nigeria to appear before the Tribunal to give evidence on behalf of the Petitioners. The only witness or witnesses compellable at the instance of the Tribunal are provided for in paragraph 41(5) & (6) of the First schedule to the Electoral Act, 2010 as amended. Strict compliance with Paragraph 4(5) of the First schedule to the Electoral Act is mandatory. It is of such a serious nature that there is a sanction in subparagraph (6) of paragraph 4
I am of the unwavered view that the trial Tribunal was right in its findings and conclusions as cited above. I therefore find that the Tribunal was right when it found and held that:
having been

35

filed out of time, without the leave of the Tribunal first had and obtained. The witness cannot therefore be sworn to give oral evidence on behalf of the petitioners.?
?
I however find that, the issue of Order 3 Rule 3 of the Federal High Court (Civil Procedure) Rules, 2009 and Civil Form 1(A) pursuant thereto, was raised suo motu by the trial Tribunal. It was not an issue before the Tribunal as same was never raised by the parties. However, the findings of the Tribunal therein was not the reason for the decision, as without that issue having been raised, the decision of the Tribunal would have been the same. The Appellants have therefore not shown any prejudice or injustice they have suffered by the Tribunal raising and determining that point suo moto.

On the whole, it would be seen that the issues raised by the Appellants in this appeal have been resolved against the Appellants. The appeal therefore has no merit and is accordingly dismissed. The decision of the Imo State Governorship Election Petition Tribunal in Petition No. EPT/GOV/IM/03/2019 Holden at Owerri delivered on the 11th day of July, 2019 is hereby affirmed.
The parties are to bear their costs

36

MOJEED ADEKUNLE OWOADE, J.C.A.: I agree

FATIMA OMORO AKINBAMI, J.C.A.: I agree

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I agree

ABDULLAHI MAHMUD BAYERO, J.C.A.: I agree

37

Appearances:

K.C. Nwufo SAN with him U.N. IsaacFor Appellant(s)

C.O. Ahumibe, Esq., with him S.O. Soronnadi and S.U. Okpeoha Esq. For the 1st Respondent
J.T.U. Nnodum SAN, with him Emeka Okpoko SAN, Bode Olanipekun SAN and A.S. OGUJIOFOR For the 2nd Respondent.
K.C.O. Njemanze SAN with him L.M. Alozie SAN , Nneka Nkama, Esq and N.C. OHAKWE for the 3rd Respondent.For Respondent(s)

 

Appearances

K.C. Nwufo SAN with him U.N. IsaacFor Appellant

 

AND

C.O. Ahumibe, Esq., with him S.O. Soronnadi and S.U. Okpeoha Esq. For the 1st Respondent
J.T.U. Nnodum SAN, with him Emeka Okpoko SAN, Bode Olanipekun SAN and A.S. OGUJIOFOR For the 2nd Respondent.
K.C.O. Njemanze SAN with him L.M. Alozie SAN , Nneka Nkama, Esq and N.C. OHAKWE for the 3rd Respondent.For Respondent