The Presidential Election Petition Court’s judgment on the petitions of the Allied People’s Movement (APM), Labour Party (LP) and the People’s Democratic Party (PDP) was delivered on the 6th of September, 2023 at Abuja. The truth about this judgment is that implicitly the three petitions were actually struck out and declared dead even before being evaluated. A court that held that 10 out of 13 witnesses presented by Labour Party were incompetent to testify and nullified all the evidence provided by them, which formed the fulcrum of their petition, didn’t want to entertain the petition in the first place.
The same thing went for the People’s Democratic Party. The APM’s case was very obvious because the court made it clear that they will not entertain it at all. The reason adduced by the Court for implicitly striking out the petition of the LP and PDP were that all the subpoenaed witnesses by these parties, including their evidence, offended the Electoral Act and should be struck out. After striking out the testimonies of the witnesses, the skeleton they left for LP and PDP couldn’t carry the petition through. The reason offered for striking out the petition of the APM was that they lacked locus standi to institute the petition.
Because of the emphasis the court placed on the issue of subpoenaed witness, we will treat the issue in details. It’s elementary law that there’s a difference between the Petition, Reply to Petition and witness statement on oath. Petition and the Replies are akin to statement of claim and statement of defence in ordinary civil proceedings and the witness statement on oath is the evidence with which the facts stated in the petition are proved. 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 court surprisingly said it must. Even the court admitted that this was not their original position when the law had not limited election petitions to 180 days. That it’s to be able to meet up with time that the need to curtail the time spent on election petitions gained heightened interest. It also interpreted the law to the effect that the law supports it.
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, yet the court is saying that their own orders makes no meaning in the determination of a petition. Another worrying situation is how the court treated the petition and the witness statement on oath as if they were the same when in actual fact, they are different and were differently treated by law. In order that the ordinary Nigerian, who is not a lawyer will understand me, I want to create a pedestrian scenario to explain this.
Assuming Paul broke into my house to steal my car and was bitten by my dog and he fled. I may sue him for trespass on my building and claim damages. I am expected only to state the facts of what happened in my statement of claim (Petition) that Paul came to my house to steal and was bitten by my dog. In order to prove my claim, I know that if I ask Paul to come willingly to court to come and show the scar of my dog’s bite to prove that he came to steal in my house that he will refuse. I will file my suit first and ask court to order Paul to come and testify. Paul must come and when the court sees the scar they will give me judgment. Assuming there’s a law that says that I have 21 days to sue Paul, after Paul came to my house to steal, it’s obvious that the law, if it wants justice, must make exception about Paul’s testimony, because it knows that Paul will never agree to come voluntarily to testify against himself and the law actually makes provision to accommodate Paul’s testimony even after 21 days after the trial has commenced to enable me to use court order to bring Paul to testify. But if the court does not want justice, it will insist that Paul must be produced by me within the 21 days before the hearing of the suit. Paul, being aware of the court’s stance, only needs to hide away from me for the 21 days in order to frustrate my case, and if I manage to produce Paul after 21 days with the order of court, a court that doesn’t want justice will claim that though I have proved my case by showing the scar of my dog’s bite on Paul, they will not give me judgment because I produced Paul after 21 days.
This is exactly the position of the Petitioners and INEC. The Petitioners were declared losers by INEC. There is no way INEC will aid the petitioners to come to court to prove that they were irresponsible or criminals. The order by court to subpoena INEC, for instance, to provide evidence or testify during trial can only be done during trial by which time the 21 days has expired. What this judgment is saying is that a petitioner who cannot get his desired evidence within 21 days from a hostile witness to file his case has lost the petition. Really? To get evidence in what happened in 176,000 polling units from an unwilling witness, within 21 days of the declaration of INEC’s preferred candidate, or lose your petition can only come from a court that has already programmed the petitioner to lose.
The disturbing thing about this decision is that it runs contrary to law and reason. Paragraph 54 of the Rules of Procedure for Election Petitions, expressly adopted the rules of procedure of the Federal High Court to guide the rule of the court in election petitions. The rule of the FHC made it clear that subpoenaed witnesses must be allowed to testify anytime by the order of court. Yet the presidential court 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 expressly stated 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 and 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 “(a) specify the parties interested in the election petition ; (b) specify the right of the petitioner to present the election petition ; (c) state the holding of the election, the scores of the candidates and the person returned as the winner of the election ; and (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 that can attract the sanction of striking out the petition (See sub-paragraph (7) of this paragraph 4) or that cannot be amended (See paragraph 14(2)(ii) of the Rules of Procedure for Election Petitions.
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. The court can only subpoena witnesses at the commencement of trial. Paragraph 41(1)(5)(6)(a)(b)(c) states “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. 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 sub-paragraph (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, 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 filled 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 Petitioners’ petitions were, therefore, unjustifiably struck out on this basis. Because of constraints of space, other issues like non-compliance, locus standi, non-joinders etc, as decided by this judgment, will soon be critically analysed, God willing.