By Jibrin Samuel Okutepa SAN
On the 10th of January 2024, I wrote on the need for the Supreme Court to revisit its decisions on subpoenaed witnesses. Many demanded that I should demonstrate that the Evidence Act 2011 as amended is applicable to proceedings before the Election Petition Tribunals and or Court. I took up that challenge and have to improve on what I wrote. Here is an improved version of what I said.
There is no dispute that the Supreme Court of Nigeria is the final court of the land. Its decisions are binding and has force of law. All authorities and courts below it must abide by and respect its decisions. Anyone not happy can criticize it and hope that one day the Supreme Court will see reasons and depart from those decisions.
No doubt also that the Supreme Court is a court of law and a court of policy. As policy court, its decisions must not be rendered to encourage political rascality or interfere with justice and to put road blocks to attainment of justice. Supreme court is not infallible. It is just infallible because it is the final court. The reason for this is self evident as Oputa JSC as he then was, now of blessed memory explained and stated it in Adegoke Motors Ltd vs Adesanya & Anor (1989) 5 SC 113, (1989) 3 NWLR (Pt. 109) 250 at 274 thus: We are final not because we are infallible, rather we are infallible because we are final.
In the case of Prince Yaya Adigun & Ors vs. The Governor Of Osun State & Ors (1995) LPELR-178(SC), his lordship Uwais, JSC, as he then was but late CJN also as he then was, at PP.29-30, paras. C-A, was clear on the point that: This case has clearly illustrated the futility of challenging the decision of this Court, as the apex Court in the hierarchy of our Court system. Apart from the provisions of Section 54 of the Evidence Act, Cap. 112 and the principle of estoppel per rem judicatam, Section 215 of the 1979 Constitution, Cap. 62 of the Laws of the Federation of Nigeria, 1990 provides – “215.
Without prejudice to the powers of the President or the Governor of a State with respect to prerogative of mercy no appeal shall lie to any other body or person from any determination of the Supreme Court.” The powers of the President and the Governors of the States referred to in the section are limited to criminal proceedings only (see Sections 161 and 192 of the 1979 Constitution). The finality of the decisions of the Supreme Court in civil proceedings is absolute unless specifically set aside by a later legislation. The justices that man the Court are of course fallible but their judgments are, as the Constitution intends, infallible.
Therefore any ingenious attempt by counsel to set aside or circumvent the decision of the Supreme Court will be met with stiff resistance.” The reason for this is self evident as Oputa JSC stated in Adegoke Motors Ltd v Adesanya & Anor. (1989) 5 SC 113: (1989) 3 NWLR (Pt. 109) 250 at 274 thus: “We are final not because we are infallible, rather we are infallible because we are final.
That is why it is acknowledged even by the Supreme Court itself that it can make mistakes and its mistakes can cause incalculable damages in the society. Because the Supreme can make mistakes, the Supreme Court has the jurisdiction and power to set aside its own decisions. As his lordship, Ogbuagu, JSC, as he then was now of blessed memory put it: I will add some other cases in which this court has restated the grounds under which it will depart from and overrule its previous decisions or its own judgment set aside. See Samuel Oke v. Lamidi Aiyedun (1986) 4 SC 61, (1986) 2 NWLR (Pt. 23) 548; Ukpe Orewere & Ors v. Rev. Moses Abiegbe & Ors (1973) 1 All NLR (Pt.11) 1 and The Attorney General of the Federation v. Guardian Newspaper Ltd. (1999) 5 SCNJ 324 at 404; (1999) 9 NWLR (Pt. 618) 187 citing several other cases therein.
The reason or rationale behind this power was graphically or beautifully stated by Oputa, JSC in the case of Adegoke Motors Ltd. v. Dr. Adesanya & Anor (1986) 3 NWLR (Pt. 109) 250 at 274; (1989) 5 SCNJ 80, inter alia, thus; “We are final not because we are infallible; rather we are infallible because we are final. Justices of this court are human beings, capable of erring. It will certainly be shortsighted arrogance not to accept this obvious truth. It is also true that this court can do inestimable good through its wise decisions.
Similarly, the court can do incalculable harm through its mistakes. When therefore it appears to learned Counsel that any decision of this court has been given per incuriam, such Counsel should have the boldness and courage to ask that such decision shall be over-ruled. This court has the power to overrule itself (and has done so in the past) for it gladly accepts that it is far better to admit an error than to preserve an error.” See the case of Amalgamated Trustees Limited vs. Associated Discount House Limited (2007) LPELR-454(SC) (Pp. 60-64, paras. F-C).
It is submitted that mistakes of the Supreme Court can cause damages to attainment of justice. It can block justice also. It is on the basis of the foregoing that I think that it is time for the Supreme Court to take a second look at its decisions to the effect that in election Petition cases, written statements of subpoenaed witnesses must be filed along with the Petitions within 21 days allowed by the constitution for petitioners to file petitions before subpoenaed witnesses can be competent to testify.
In making this appeal I find the recent decision of the Court of Appeal very useful and it sets a basis to call the attention of the Supreme Court to the need to take a second look at its decisions on subpoenaed witnesses in election Petition case. I speak of the case of Umar & Anor v Sokoto & Ors (2023) LPELR 61356 (CA).
But before then let me say that the decision of the Supreme Court and perhaps the decision of the Court of Appeal in the Presidential Election Petitions of Alhaji Atiku Abubakar vs INEC and Peter Gregory Obi vs INEC infra, were based on the provisions of the 1st Schedule to the Electoral Act 2022, which provides that oral examination of witnesses shall not be allowed at the hearing of election petition cases and that for election petition to be competently filed, it must be accompanied with written Statements of witnesses the petitioners intend to call at the trial of the petition.
With due respect to their lordships of the Court of Appeal and the Supreme Court, the views that subpoenaed witnesses cannot be called and evidence received even by written testimonies or oral testimonies is not admissible and receivable unless the written statements are filed along with the petitions within the time allowed to file petitions by the constitution and the Electoral Act, cannot be the correct interpretations and position of law, given the wording of paragraph 41(1) of the 1st schedule to the Electoral Act 2022. This is because the law governing receptions of evidence before all courts in Nigeria is the Evidence Act 2011. Evidence Act is a written law.
Section 256(1) of the Evidence Act, 2011, makes the Evidence Act applicable to the proceedings before the Election Petition Tribunals and or Courts established by law and or the Nigerian Constitution. That section provides that: 256. (1) This Act shall apply to all judicial proceeding in or before any court established in the Federal Republic of Nigeria but it shall not apply to- (a) proceeding before an arbitrator; (b) a field general court martial; or……
Section 222(2) of the Evidence Act, 2011, prescribes that a witness may give oral evidence of statements made by other persons about the content of a document if such statements are in themselves relevant facts.
Section 52 of the Evidence Act, 2011, provides that any entry in any public or other official books, register or record, including electronic record, stating a fact and made by a public servant in the discharge of his official duty, or by any other person in the performance of a duty specially enjoined by the law of the country in which such book, register or record is kept, is itself admissible.
A Subpoena is a process by which the Court at the instance of a party commands a witness who has in his possession or control some document or paper that is pertinent to the issues in a pending suit to produce it at the trial. A person attending Court under a Subpoena duces tecum need not be sworn and cannot be cross-examined.
The document he produces does not become evidence upon production. He places the document before the Court and becomes an exhibit only after it is identified by a competent witness who tenders it in evidence. See Famakinwa vs. University of Ibadan (1992) 7 NWLR (Pt.255) 608, Ojokolobo vs Alamu (1991) 1 NWLR (Pt. 165) 1, Anatogu vs Iweka II (1995) 8 NWLR (Pt. 415) 547 and sections 218 and 219 of the Evidence Act, 2011.
In the case of Hon. Kehinde Agboola & Anor vs. Independent National Electoral Commission & Ors (2019) LPELR-48743(CA), it was held by the Court of Appeal that:”subpoena duces tecum has been described as follows: “a subpoena duces tecum is thus a court process, initiated by a party in litigation compelling the production of certain specific documents and other items, material and relevant (emphasis mine) to facts in issue in a pending judicial proceeding which documents and items are in custody and control of the person or body served with the process.” See the cases of OBI-ODU v. DUKE 2006 1 NWLR PT. 961 375 and INCORPORATED TRUSTEES OF ISLAND CLUB & ORS v. SIKUADE 2016 LPELR-42278 CA.
The law on subpoena duces tecum is clear and the point needs be reiterated as hereunder quoted in order to remove any confusion in its regard as follows: “A person who brings forward a document in Court in obedience to subpoena cannot be said to have given evidence not to talk of his having capacity to give or tender in evidence the said document particularly when the person served with the subpoena has the option or liberty to cause it to be produced in Court through any other person of his choice…Once a document is delivered to the Court, the person’s obligation is discharged and cannot be sworn nor cross-examined.
But the delivery of the document in Court in pursuant to Section 192 of the Evidence Act, does not relieve the person who summoned an adverse party to produce the document of the burden of proving the document by having it admitted in evidence by tendering it through a person who has the capacity to do so.” See the cases of FIMAKINWA V. UNIBADAN 1992 7 NWLR PT.255 668 and SANI & ORS V. LERE & ORS 2009 LPELR-4930 CA. Once the person summoned produces the document, he is obliged to be released as he has completed his call and cannot be regarded as a witness. See the cases of ANATOGU V. IWEKA II 1995 8 NWLR PT. 415 547 and INCORPORATED TRUSTEES OF ISLAND CLUB & ORS V. SIKUADE supra.” Per Williams-Dawodu, JCA at PP. 30-32, paras. D-B).
That there are two types of subpoena that can issued by courts or Tribunals is well settled without any controversy. The case cited below identified these subpoenas. In the case of Ibinabo Sonny Amachree & Anor Vs. Independent National Electoral Commission & Ors (2019) LPELR-48677(CA) his lordship Lamido, JCA at PP.17-27, paras. B-E) made the points I am struggling to put across. This is what his lordship said and because it is relevant, permit me to quote his lordship in extenso.
Hear what my lord, Lamido JCA, said: 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. OLARENWAJU & 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 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 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 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; 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 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 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.
Now back to the view of his lordship, Mbaba JCA, earlier referred. The view of the Court of Appeal was well articulated in Umar & Anor v Sokoto & Ors (2023) LPELR 61356 CA, where his lordship Ita Mbaba JCA who presided in the panel that heard the appeal made profound erudite statements that resonate with justice and my own understanding of justice. Because of the importance attached to his lordship’s view, permit me to quote him in extenso. This is what the erudite jurist said: “The decision of the Tribunal was predicated on the evidence that the PW29, PW30 and PW31, being subpoenaed witnesses, did not have frontloaded statements on oaths filed with the Petition within 21 days, pursuant to Paragraph 4(5) of the First Schedule to the Electoral Act; and that there was no dichotomy between an ordinary witness and a subpoenaed witness, with regards to the need to frontload evidence within the required timeframe.
This issue has become quite a topical and thorny one, in this dispensation of election cycles. Before this time, opinion appeared to favour the reasoning that demanding a subpoenaed witness to have frontloaded his statement on oath, with the Petition, before being qualified to give evidence, was to demand for an impossibility, especially where the subpoenaed witness belonged to the opposite camp and would not willingly volunteer his evidence on oath, for obvious reasons, and that within 21 days the Petitioner is mandated to file his Petition. Of course, it is a known fact that where the opposite camp is required to give evidence, or to produce vital document, needed to decide the case in favour of an opponent (the Petitioner), it is certain that the witness would gladly decline to do so, and would frustrate the Petitioner in the process to get justice.
Thus, in my view, it amounts to asking for the impossible, to expect some subpoenaed witness to frontload their evidence with the election Petition. And that would enthrone denial of fair hearing. See the case of Hamisu vs Abacha & Anor (2023) LPELR – 60476 CA, where it was held: “There are two types of subpoena and a witness may either be subpoenaed to testify, or to tender documents. A witness can also be subpoenaed to tender document and testify. PW1 is clear was subpoenaed to tender documents and he was cross-examined by the Appellant on the documents so tendered.
There is nowhere that a witness subpoenaed is obligated to have a written statement on oath.” Per HASSAN, JCA (P. 31, paras. C-E) See also the case of Isah Bashir & Anor Vs Kurdula & Ors (2019) LPELR – 48473 CA, where my Lord Wambai, JCA extensively considered the issue as follows: It is my firm belief that the Electoral Act would not have contemplated a scenario where a petitioner would be expected, nay, required, to frontload the deposition of his adversary or that the adversary will willingly without any collusion or illegality, depose to a statement in favour of the petitioner.
Since the Respondents are mandated by law to defend the petition. “It cannot be within the estimation of the law, in a normal situation, that a respondent will actively take deliberate steps or actions in support or proof of his opponent’s case. I believe strongly, that it cannot be the intendment of the 1st Schedule or the Practice Direction that a Respondent in an election petition will voluntarily make a deposition on Oath in favour of the petitioner for frontloading or to require a Respondent at any stage of the trial to voluntarily make any such deposition in favour of the petitioner.
This is more so that statutorily, a Respondent in an election petition is mandated to defend and not to support the petition. The law commands that which is reasonable and possible and not what is illogical or naturally impossible. Thus, the legal maxim “lex non cogit ad impossibilia” “the law does not command the impossible” applies here. It follows that the Respondent can only testify for a petitioner if compelled to do so by a subpoena. This is the import of the Appellant’s application for the issuance of “subpoena duces tecum ad testificandum” to compel, through the instrumentality of the subpoena, the subpoenaed witnesses to testify on their behalf, a function which the subpoena is intended to perform.
It is to be noted that a subpoena is a Court process commanding any person to attend to Court and produce a document or evidence before it. In his explanation of a subpoena, Kekere-Ekun JCA (as he then was) in Omidiran vs. Patricia Etteh (supra) held thus to say: – “A subpoena is a formal document issued by the Court commanding a person required by a party to a suit to attend the Court at a given date, to give evidence on behalf of the party or bring with him and produce any specified documents required by the party as evidence or for both purposes.” Let me say here that the question thrown up by the scenario in this appeal is not novel. It is a scenario upon which this Court has spoken and it did so eloquently through Ogunbiyi, JCA (as he then was) in the case of Lasun vs. Awoyemi and Kekere-Ekun, JCA (as he then was) in the case of Omidiran vs. Patricia Etteh (Olubunmi) (supra). Ogunbiyi, JCA (as he then was) in his characteristic manner succinctly held inter alia: – “It cannot therefore be within the contemplation of the Practice Directions that the respondent should sign a witness statement or deposition on behalf of the Petitioner whose allegations of irregularities were against the said party. In other words, it is not within the expectation of the said Practice Directions that the Petitioner would frontload the statement of the Respondent.” In respect of such a Respondent subpoenaed by the Tribunal at the instance of the Tribunal, his lordship continued: “By mere fact of the subpoena having been issued, the witness is bound to be sworn on oath to testify and be cross-examined. The authority in the case of Onyemelukwe v. Alberto [2001] All FWLR (Part 83) 2166 at 6184 is relevant…” See also the case of Muhammad Bashir Olatunji Ibrahim vs. Olatunji Adende Ogunleye & Ors (2010) LPELR-4556(CA) per Adumein, JCA. It follows that the provisions of Paragraph 4(5)(i)(b) and 41(3) of the 1st Schedule of the requirement of frontloading witnesses’ deposition on Oath only contemplates willing and voluntarily witnesses who elect out of their volition to testify for the petitioner.
They do not and cannot be contemplated or intended to apply to witnesses who are compelled by an order of Court through a subpoena duces tecum ad testificandum, to testify before the Tribunal, as it is not logical to expect such subpoenaed witnesses who are Respondents to the petition to prepare witness deposition to aid the case of his adversary. Any such expectation will go beyond the realm of any reasonable logic. Of course, the above position and concern appear to have been overthrown by the latest decisions of this Court and of Apex Court in the case of Obi Vs INEC & Ors: CA/PEPC/3/2023 delivered on 6/9/2023, (and affirmed by the Supreme Court) which the Tribunal had relied on to hold as follows: “In this case, the Court of Appeal reviewed the various decisions of the Court on this and concluded that the Supreme Court’s decision in the case of Oke V Mimiko (No.1) (2014) 1 NWLR (Pt.1388) 225 represents the position of the law. And that is in an election Petition a witness cannot testify if his deposition on oath was not frontloaded at the time of filing the Petition. We therefore hold that PW29, PW30 and PW31 are not competent to testify and their testimonies before the Tribunal are expunged from the record.
The objection to this effect is upheld and sustained (Page 3389 of the Records of Appeal). See also Atiku Abubakar & Anor Vs INEC & 2 Ors: SC/CV/935/2023, where the Apex Court held that by Section 285(5) of the Constitution of the FRN, 1999; Paragraphs 4(5) and 14(2) and 41(3) of the First Schedule to the Electoral Act, 2022, a witness must be listed in the Petition or Reply and his deposition frontloaded in the Petition or Reply before he can testify before a Tribunal in support of a party. Of course, the Apex Court had added that the requirement to frontload a witness statement (whether ordinary or subpoenaed witness) along with the Petition, filed within 21 days of declaration of winner of an election, is mandatory in election Petition. That is the settled position of the law, for now, notwithstanding the fears, concerns and worries discussed by my Lord, Wambai JCA in Bashir Vs Kurdula (supra), and discussed above. This Court is bound by that latest position of the law. And with that decision, the proverbial fear of “throwing away the baby with bath water”, appears to be permitted as the evidence and the documents (Exhibits) produced by the said witnesses PW29, PW30, and PW31 and the documents they produced stand rejected and expunged from the Records!
Thus, despite the fact that the PW29 and PW30 were officers of the 4th Respondent, and the documents they produced would have been relevant to the trial, and presumed under Section 137 of the Electoral Act, 2022, the said documents have been defiled by means of the virus of the incompetent witnesses, who produced them, unfortunately! The decision of the Apex Court had explained that the requirement of frontloading of subpoenaed witness statement on oath, applies to Elections Petition and may not apply to other civil causes, and that is because of the sui generis nature of Election matters.
I respectfully opine that the phrase, sui generis, which also applies to Fundamental Right actions, sometimes appear to be employed, unfortunately, as euphemism for injustice and enthronement of undue technicalities, as opposed to doing substantial justice. See Obisi Vs Chief of Naval Staff (2004) LPELR – 2184 (SC); Omoju Vs FRN (2008) LPELR – 2647 (SC), where it was held: “Courts of law have long moved away from the domain or terrain of doing technical justice to doing substantial justice.
This is because technical justice, in reality, is not justice but a caricature of it. It is justice in inverted comas and not justice synonymous with the principles of equity and fair play. Caricatures are not the best presentations or representations. Substantial justice, which is actual and concrete justice, is justice personified. It is secreted in the elbows of cordial and fair jurisprudence with a human face and understanding. It is excellent to follow in our law.
It pays to follow it as it brings invaluable dividends in any legal system anchored or predicated on the rule of law, the life blood of democracy. See generally State v. Gwato (1983) 1 SCNLR 142; Union Bank of Nigeria Plc v. Ikwem (2000) 3 NWLR (Pt. 648) 223; Sha v. Kwan (2000) 8 NWLR (Pt. 670) 685; Adebayo v. Okonkwo (2002) 8 NWLR (Pt. 768) 1; Asims (Nig.) Limited v. Lower Benue River Basin (2002) 8 NWLR (Pt. 769) 349; Afro-Continental (Nigeria) Ltd. v. Co-operative Association of Professionals Inc. (2003) 5 NWLR (Pt. 815) 303.” Per TOBI, JSC (Pp. 14-15, paras. D-B) Section 137 of the Electoral Act, 2022 says: “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.”
There is nothing more useful I can add to the views expressed by their lordships of both the Court of Appeal and the Supreme quoted hereof by his lordship Mbaba JCA as referred to above. Sui generis nature of election petition can not and must not make justice subservient to doing of substantial justice. No, it should not and must not. I feel the Supreme Court has a duty and responsibility to set precedents in aid of justice and not in slaughtering it on the altar of technicalities. That in the words of Niki Tobi JSC as he then was will be caricature. See Afro-Continental (Nigeria) Ltd. vs. Co-operative Association of Professionals Inc (2003) 5 NWLR (Pt. 815) 303 at PP.14-15, paras.
16.0.
The Supreme and the Court of Appeal have in many of their decisions warned about resort to technicalities in proceedings including election petition cases. His lordship, Oguntade JSC as he then was spoke extensively on this point in Amechi vs INEC (2008) LPELR-446(SC) at PP.67-68, when his lordship made it clear that:
“A Court must shy away from submitting itself to the constraining bind of technicalities. I must do justice even if the heavens fall. The truth of course is that when justice has been done, the heavens stay in place. It is futile to merely declare that it was Amaechi and not Omehia that was the candidate of the PDP. What benefit will such a declaration confer on Amaechi? Now in Packer v. Packer (1954) P.15 at 22, Denning F M. R. in emphasizing that there ought not to be hindrances or constraints in the way of dispensing justice had this to say:- “What is the argument on the other side? Only this that no case has been found in which it had been done before. That argument does not appeal to me in the least. If we never do anything which has not been done before we shall never act anywhere.
The law will stand still whilst the rest of the world goes on and that will be bad for both.” The Supreme Court in Nigeria has followed the same approach. In Engineering Enterprises Contractor Company of Nigeria v. Attorney-General of Kaduna State (1987) 1 N.S.C.C 601 at 613; (1987) 2 NWLR (Pt. 57) 381, Eso, J.S.C. observed:- “One stream that permeates through all these decisions, and I hold the view that this is a good sign for the administration of justice in this country, is the clear, unadulterated water filled with great concern for the justice of the case.
The signs are now clear that the time has arrived that the concern for justice must be the overriding force, and action of the Court. I am not saying that ex debito justiciae, by itself is a cause of action, it is to be the basis for the operation of the Court, whether in the interpretative jurisdiction or basic attitude towards the examination of a case.” The sum total of the recent decisions of this Court is that the Court must move away from the era when adjudicatory power of the Court was hindered by a constraining adherence to technicalities. This often results in the loser in a civil case taking home all the laurels while the supposed winner goes home in a worse situation than he approached the Court.
In Inakoju vs Adeleke (2007) LPELR-1510(SC), the Supreme Court spoke clearly on the need to avoid technical justice in our courts. This is what Niki Tobi JSC as he then was now of blessed memory said at 124-125 paras C-A of the report: For quite some time now, this Court has moved from the regime or domain of doing technical justice to the regime or domain of doing substantial justice.
This is in keeping with the jurisprudence of the wider world and its legal system. The need for court of law to do substantial justice becomes more imperative when considering the provisions of the Constitution, the fons et origo of any democracy. In Attorney-General of Bendel State v. Attorney- General of the Federation (1982) 3 NCLR 1, Idigbe, JSC, said at page 68: “I incline to the view that in suits calling for decisions on issues relating to the Constitution this court ought not unduly to allow technicalities to deter it from making vital pronouncements.” Nnamani, JSC, added at pages 112-113: “If the plaintiff is entitled to be heard by this court how he comes to be heard may be immaterial.
I do not agree that in a complex suit such as this touching on matters which lie at the very foundations of the stability of this country this court should be unduly bogged down by technicalities. This court has in many recent decisions, while affirming the importance of observance of Rules of Court, stated that it is more concerned with doing substantial justice between the parties.” The statement by Nnamani, JSC, is germane to this case when the learned Justice mentioned the stability of the country.
The plethora of removal proceedings in respect of Governors is not only frightening but is capable of affecting the stability of Nigeria. It is almost like a child’s play as some State Legislatures indulge in it with all the ease and comfort like the way the English man sips his coffee on his breakfast table. Unless the situation is arrested, Nigerians will wake up one morning and look for where their country is. That should worry every good Nigerian. It does not only worry me; the idea frightens me so much. With the above parenthesis, I take the case of Famfa Oil Limited v. Attorney-General of the Federation (2003) 18 NWLR (Pt. 852). 453 where Iguh, JSC, said at pages 471 and 472: “I should perhaps mention in the above regard that this court for quite some time now has consistently shifted away from the narrow technical approach to justice which characterized some earlier decisions of courts on various matters and now pursues, instead, the course of substantial justice. Accordingly, courts of law should not be unduly tied down by technicalities, particularly where no miscarriage of justice would be occasioned. Justice can only be done in substance and not by impeding it with more technical procedural irregularities that occasion no miscarriage of justice.
The need to avoid technicality in election jurisprudence has been emphasized over and over again by our superior courts particularly the Supreme Court and the Court of Appeal. To underscore the points sought to be made, it will be necessary to refer to in conclusion the case of Osigwelem vs INEC and Ors (2008) LPELR-4805 (CA) at 25-28, where the point was made by the Court of Appeal that: Again, in a more recent case, concerning scores at an election this Court insisted on need of Court to eschew technicalities and substantial justice to the parties before it. This Court per Ikongbeh, JCA of blessed memory held thus: “I must repeat what I said in my contribution in WILLIAMS v TINUBU & ORS (unreported No. EPT/CA/L/03/03 decided on 18-07-03 regarding the increasing incidence of over-dependence on technicality in election petitions: – Indubitably an election petition is a matter sui generis and need to be disposed of as expeditiously as possible. That, with all due respect, is not an invitation to adopt the most cavalier method of dealing with it. The need for speedy disposal of the petition must be weighed against the wider need not only to do justice but also to be seen to be doing it, taking into consideration the nature of an election petition and what the entire process entails for the body polity. In this regard I would like to recall the words of wisdom and caution issued by Holden, J., DOGARAI v GWARZO & ORS (1985) NNLR 9 at 10 on this point.’ ‘If this were an ordinary civil action, I would have no hesitation in refusing the application. In a civil action, if the parties or their Counsel cannot take the trouble to get their application right, the Court shows them no mercy, but in an election petition we are not concerned with the interest and claims of private individuals. It has been alleged that the election in this constituency was not properly conducted. That is a matter in which the interest of the community is seriously concerned, and in which public interest completely over-shadows the interests of the individuals involved. It is necessary that the allegations of impropriety in the conduct of the election be enquired into and pronounced upon judicially, and no technicalities can be allowed to stand in the way of that injury. Accordingly, I will overlook the fact that this application is in the wrong form and without notice and without any supporting affidavits or reasons of any sort, and I will do-what I think best for the purpose of bringing this petition on for hearing, in spite of the mistakes of Counsel for the Petitioner.’ That decision was given under a different electoral law, but the same principle that was embodied in it has run through all electoral laws that we have had since, including the present one. Unhappily one cannot pretend to be unaware of the growing tendency in recent time among judges who are called upon to hear and determine election matters to shy away from this sacred duty of hiding behind technicalities. The Nigerian society is a very delicate one. There is nobody can honestly dispute this, widespread discontent. In my view, the best panacea for creating a peaceful and conducive atmosphere is to keep all avenues of ventilating grievances as wide open as possible. While we must work according to and within the provisions of the law and the rules, we must do all we can to avoid enthroning technicality above everything else, even, ray, especially in election petition matters.” (Underlining supplied for emphasis.) Not done yet, the erudite Jurist went on to hold that in the case of AJUDUA V. NWOGU No. 1 (2004) 16 NWLR (Pt.898) as follows:- “If what one reads in the press today is anything to go by, then we in the judiciary need urgently to look inward with a view to reversing the uncomplimentary views the people hold of us. One can hardly quarrel with Harry Nwana who warned that ‘Where a people are willfully injured by men in power, and they have no recourse to turn to for redress, it aggravates the injury. Such people can behave irrationally and may take it out on neither have nor their person. See Vanguard of Wednesday, 23-07-03 p.13.” He no doubt echoed the view of a great majority of Nigerians when he lamented and advised that- “If a revolution should occur in Nigeria, it may not be because injustice was done, but because no civilized legal redress is available to the injured. If and when that happens our judiciary and the politician who impede justice must hold themselves accountable.
The politicians may do as they like, and their parties may abuse the system as they think fit but let it be known that when the judiciary is suffocated and the poor and lowly cannot look up to it for basis justice, the last hope of the common man would have been extinguished….” Election grouses should not be resolved on the same principle as those that govern civil complaints….
Facts should take precedence over legal jargon… The danger in, as it were, gagging those who feel aggrieved by throwing them out of the Tribunal or Court on technical grounds is that the grievance, real or imagined, is bottled up. When the bottle burst, the whole messy trouble will come spewing on us all, especially the poor. It is better to let all who feel aggrieved have their say on the substance of their complaint. If there is no substance in it then let them be so told after they have been heard unless, of course the non-compliance is so glaring as justify the premature termination of the hearing.
The avoidable tension will then have been diffused.” I am of the firm view that though the Petitioner had not made the scores of the parties an issue in his petition even if he had done so, the law has gone beyond the times of strict interpretation of the provisions of Paragraph 4(1)(c). This is the attitude modern Courts now adopt to election petitions. Hear the parties who have come to the Tribunal with a grievance. I am of the further view that if the Election Tribunal had read these warnings from this Court as spelt out in the cases supra; they would in reluctant to strike out the petition.
It therefore necessary in the light of all that I have said above for the Supreme Court to revisit its decisions on subpoenaed witnesses in election petition.
Otunba Olumofin J.S.Okutepa SAN
11th January 2024.
