By Kenneth Okonkwo
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The judgement of the Supreme Court (SC) on the appeal against the judgement of the Presidential Election Petition Court (Court of Appeal), brought before it by the Appellants, (Peter Obi and Atiku Abubakar) was delivered on the 26th day of October, 2023 in Abuja as lacking in merit. The decision of the SC raised some substantial issues of law that urgently need to be addressed in order to safeguard our democracy. The most critical, which will pose an existential threat to any successful prosecution of any presidential petition is the decision of the SC that subpoenaed witnesses and their witness statements on oath will not be admitted after 21 days from the declaration of the winner of the election by the Independent National Electoral Commission (INEC).
Curiously, the SC agreed with the trial court that there are no provisions in the Electoral Act that supports any allowance or exception, with regards to subpoenaed witnesses, to the general rule that the witness statement on oath of a witness must accompany the petition filed within 21 days of the declaration of a winner by INEC. It would have been a different thing if the court had stated the correct position of the law and given it any interpretation it wishes, but stating openly that there are no provisions of the law that support the admitting of the witness statements on oath of a subpoenaed witness outside the 21 days allowed to present a petition is respectfully not in accordance with the express provisions of the Electoral Act. The Petitioner has within 7 weeks to present his case at the trial court.
In a presidential election, there are more than 176,000 polling units. According to the courts, electoral malpractices must be proved, polling unit by polling unit, to succeed. The court even held that a Petitioner must provide a witness in each of the polling units to tender the evidence and all the witness statements on oath must be filled within 21 days before hearing. So if a Petitioner is complaining about the election in the whole polling units, he has to bring 176,000 witnesses whose witness statements on oath must be filed within 21 days and who must be examined and cross examined within at most 7 weeks of the trial, averaging about 3,591 witnesses a day. This is impossible, so if there’s any law like that, it’s void based on the overarching principle of law that “law does not admit of an impossibility”. Thank goodness, because, contrary to the decision of the courts, this is not the position of the law. The Legislature was aware of this impossibility when they made express provisions in the law to take care of them, yet the court, unfortunately, did not give effect to these provisions of the law.
Section 137 of the Electoral Act (EA) is very clear that “It shall not be necessary for a party who alleges non-compliance with the provisions of this Act for the conduct of elections to call oral evidence if originals or certified true copies manifestly disclose the non-compliance alleged.” The provision of this section is clear and unambiguous and admits no judicial interference in its interpretation. A party doesn’t need to call 176,000 witnesses to prove non-compliance in polling units if he has the original or ctc of the required documents needed to prove it. The idea of still ruling that tendering such documents in court without oral evidence amounts to dumping is certainly not in accordance with the express provision of the law, and a negation of the “sui generis” nature of election petition, and should be jettisoned, otherwise it will be impossible to prove a presidential election petition.
Let us treat in details the issue of subpoenaed witnesses because of the emphasis the court placed on the issue. It’s elementary law that there’s a difference between the Petition, and witness statement on oath. The Petition states clearly the facts of the case, and the ground(s) on which the petition is based and the relief(s) sought by the petitioner. The witness statement on oath is the evidence with which the facts stated in the petition are proved. Paragraph 41(1) of the Rules of Procedure for Election Petitions clearly states the difference between the two when it stated “… 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”.
According to the law, the petition must be submitted within 21 days after the declaration of a winner (Section 285(5) of the 1999 Constitution). Note that it is the law that witness statement on oath should accompany the petition. The question is whether the witness statement on oath of a subpoenaed witness must accompany the petition, within 21 days? The SC surprisingly said it must. With respect, this principle has no support in law. Firstly, a subpoena is an order of a court, to compel testimony by a witness or production of evidence under a penalty for failure. So a subpoenaed witness is a witness who appeared in court to give testimony based on the order of court. Trial must commence before a court can issue orders. The 21 days would have elapsed before even the trial commences. With respect, a court, having given its order, cannot be seen within the same case, not to obey its orders. The COA was bound to obey its own orders which it had granted on the power of subpoenas or at least set aside the subpoenas before it can rule against the admitting of the witness statements on oath of the subpoenaed witnesses after the 21 days within which to file the petition. It was surprising that the SC approved of a court denigrating its own orders.
On the issue of subpoenaed witnesses, let us state clearly that the position of the law is that subpoenaed witnesses and their statements on oath are admissible even after the 21 days allowed to file the petition. Paragraph 54 of the Rules of Procedure for Election Petitions, expressly adopted the rules of procedure of the Federal High Court to guide the court in election petitions, especially, where there’s a lacuna in the election rules. Order 3 Rule 3(2) of the Federal High Court Civil Procedure Rules, 2019 states “Where a statement on oath of the witness requires a subpoena from the Court, it need not be filed at the commencement of the suit”. This rule is clear that subpoenaed witnesses must be allowed to testify anytime by the order of court. Yet the SC rejected the rule and claimed it was not provided for in the Act. Let us note that there’s no provision which the court expressly stated in the Act that subpoenaed witnesses cannot testify after the 21 days meant to submit a petition. The court was implying that the Act didn’t make any difference between ordinary witness and subpoenaed witness whose submission of witness statement on oath must accompany the petition within 21 days. With respect to the court, the Act made copious differences between the two and allowed the court to subpoena any witness anytime during trial to present any document, evidence that can aid a party in proving its case.
Paragraph 4(1) of the Rules of Procedure for Election Petitions stated the contents of election petition to include “(d) state clearly the facts of the election petition and the ground or grounds on which the petition is based and the relief sought by the petitioner”. It is only the violation of this paragraph 4(1) that can attract the sanction of striking out the petition (See subparagraph (7) of this paragraph 4) or that cannot be amended (See paragraph 14(2) of the Rules of Procedure for Election Petitions. This penalty does not extend to paragraph 4(5) which mandated that election petition shall be accompanied by list of witnesses and their written statements on oath and copies or list of every document to be relied on at the hearing of the petition.
When it comes to the issues of evidence, further particulars and witness statement on oath, the Electoral Act is clear that they can be tendered even after the filing of the petition, on the orders of court, in other words, subpoena. Paragraph 5(a)(b) of the Rules of Procedure for Election Petitions states, “Evidence need not to be stated in the election petition, but the Tribunal or Court may order such further particulars as may be necessary to prevent surprise and unnecessary expense; to ensure fair and proper hearing in the same way as in a civil action in the Federal High Court”.
The Federal High Court expressly accommodated subpoenaed witnesses outside the filing period as already stated above. The court can only subpoena witnesses at the commencement of trial. Paragraph 41(5)(6)(a)(b)(c) states “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. The power conferred by subparagraph (5) of this paragraph extends in particular to ordering or directing that evidence of any particular fact be given at the trial by statement on oath of information or belief ; by the production of documents or entries in books ; or in the 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 that fact”.
It’s therefore, with respect, incorrect for any court to strike out the depositions of witnesses which came by its orders from subpoenaed witnesses under the pretext that they were not filed within the time allowed by law. With respect to the Learned Justices, this position is not supported by the law and ought not to have been made. The Appellants’ appeal were therefore unjustifiably dismissed on this basis.
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