BETWEEN: SC/ CV/1130/2023

IN THE SUPREME COURT OF NIGERIA
HOLDEN AT ABUJA
ON FRIDAY, 22ND DAY OF DECEMBER, 2023
BEFORE THEIR LORDSHIPS
1. JOHN INYANG OKORO
2. MOHAMMED LAWAL GARBA
3. HELEN MORONKEJI OGUNWUMIJU
4. TIJJANI ABUBAKAR
5. EMMANUEL AKOMAYE AGIM

JUDGMENT:

(DELIVERED BY HELEN MORONKEJI OGUNWUMIJU, JSC) I have read in draft the judgment just delivered by my learned brother MOHAMMED LAWAL GARBA, JSC and I agree with his Lordship’s reasoning and ultimate conclusion that the appeal lacks merit and should be dismissed. I will add a few words for emphasis.

This is an appeal against the judgment of the Court of Appeal, sitting in Lagos Division delivered on Thursday, 10th November, 2023 in respect of an appeal emanating from the decision of the Governorship Election Petition Tribunal sitting in Enugu State. The rulings and final judgment of the said Court of Appeal can be found in pages 3028-3091 of Vol.3 of the Record of Appeal.
SC.CV.1130.2023
HELEN MORONKED OGUNWUMIA, ISC

The Appellants who felt aggrieved have appealed to this Honorable Court against those findings, rulings, conclusions and ultimate orders made against them in the judgment of the lower court.
The facts which led to this appeal are as follows:
The 1st Respondent herein conducted election to the office of the Governor of Enugu State on 18th March, 2023 and at the close of the polls, the 2nd Respondent, who was sponsored by the 3rd Respondent, was duly returned as the winner of the election by the 1st Respondent. The Appellants had scored 152, 778 votes whereas the 2d Respondent had scored 157, 997 votes. Not satisfied by the 2nd Respondent’s return, the Appellants, filed a petition at the trial Tribunal for the sole relief of being returned as winner of the election. The grounds of the petition ranged from non-qualification premised on an allegation of submission of forged National Youth Service Corps (NYSC) certificate to the 1st Respondent to various electoral malpractices including falsification of results and over-voting.

The Appellants as petitioners filed an Election Petition before the Tribunal, challenging the election of the 2nd Respondent on three (3) Grounds. In proof of their case, the Appellants called 30 witnesses and tendered several documents, while the 1st Respondent did not call evidence. The 2nd Respondent called two (2) witnesses, and the 3rd Respondent called one (1) witness.
In proof of Ground 1 of the Petition, the Appellants called PW 1, PW 2, PW 3 (all witnesses on subpoena issued by the Tribunal), PW 26 and PW 30 (the latter also a witness on subpoena). PW 1 was the Director Corps Certification of the National Youth Service Corps (NYSC, who tendered Exhibit EPT01/08A (ietter by OMAS & Partners dated 23/11/2022). See the written statement on oath of PW 1 on pages 1510-1518 of Vol. 11 of the ROA, while his identification and tendering of documentary evidence and cross examination can be found on pages 2149-2151 of Vol. III of the ROA.

PW 2 a private legal practitioner, had written to the NYSC pursuant to the Freedom of Information Act, 2011 (letter admitted as Exhibit EPT01/12A) to enquire and know whether the 2d Respondent’s so called NYSC discharge certificate was issued by it (Exhibit EPT01/12B). She also tendered, the Form EC9 9 (together with its attachments, including the allegedly forged NYSC Discharge Certificate and the certification receipt), admitted and marked as Exhibits EPT01/11A, B and C. See her Statement on Oath on pages 1534A-1534H of Vol.II of the ROA, while her tendering of documents and her cross-examination can be found on pages 2151-2155 of Vol. II of the ROA. PW 3, a staff of INEC, was subpoenaed and he gave oral evidence on oath that. the 2nd Respondent actually presented to INEC his Form EC9 (Exhibit EPT01/15)
along with the allegedly forged NYSC discharge certificate.

The Tribunal, in its final judgment, expunged the evidence of PW 1, PW 2, PW 3, PW 26 and PW 30 and held that the testimonies of the other witnesses as well as the documents tendered by the Appellants were not sufficient for the Appellants to be entitled to Judgment of the Tribunal. Dissatisfied with the Judgment of the Tribunal, the Appellants appealed to the Court of Appeal on sixteen grounds of Appeal, vide a notice of appeal filed on 2nd October,
2023. The lower court on the 10th November, 2023 delivered its judgment,
Thunal, The Appelants are dissatsted with the pud ment of the court of
Appeal; hence this Appeal.

Learned Appellant’s counsel in the brief settled by Michael Jonathan Numa,
SAN distilled 4 issues for determination set out below:

1. Was the lower court right in affirming the trial Tribunal’s decision in expunging from its record and refusing to assess the evidence of PW 1, PW 2, PW 3, PW 26 and PW 30 together with all the Exhibits they tendered? (Grounds 2, 3 and 4 of the Notice of Appeal)
2. Was the lower court right in holding that the 2rd Respondent was qualified to contest or was not qualified by the provisions of the Constitution of the Federal Republic of Nigeria, 1999 as amended from contesting the Governorship Election held in Enugu State on 18th March, 2023? (Ground 5 of the Notice of Appeal)
3. Was the lower court right in affirming the trial Tribunal’s assessment of the evidence of the witnesses called by the Appellants and the documentary evidence tendered by them on the one hand; and the totality of the evidence called by the parties on the other hand? (Grounds 6, 7, 8, 9, 10 and 12 of the Notice of Appeal)
4. Was the lower court right when it refused to strike out the respective Briefs of Arguments of the 2nd and 3rd Respondents and when it discountenanced the Appellants’ Reply Briefs?(Grounds 1 and 11 of the Notice of Appeal)
In the 1st Respondent’s brief settled by Abdul Mohammed, SAN, the 15t Respondent’s Counsel identified three issues for determination as set out below:
. Was the lower court right in affirming the trial tribunal’s decision in expunging from its record and refusing to assess the evidence of PW 1, PW 2, PW 3, PW 26 and PW 30 together with all the exhibits they tendered from the record of the tribunal? (Distilled from grounds 2, 3 and 4 of the Notice of Appeal)
3. Was the lower court right in holding that the 2 Respondent was qualified to contest or was not disqualified by the provisions of the Constitution of the Federal Republic of Nigeria, 1999 as amended from contesting the Governorship Election held in Enugu State on 18th March, 2023 (Distilled from Ground 5 of the Notice of Appeal)
4. Was the lower court right in affirming the trial tribunal’s assessment of the evidence of the witnesses called by the Appellants and the documentary evidence tendered by them on the one hand and the totality of evidence called by the parties on the other hand (Distilled from Grounds 6, 8,9,10 and 12 of the Notice of Appeal)
Chief Wole Olanipekun, CFR, SAN, who settled the 2d Respondent’s brief distilled 4 issues for determination set out below:

1. Whether the court below did not correctly overrule the Appellant’s objection to the validity of the 2nd Respondent’s brief? (Ground 1 of the Notice of Appeal)
2. Whether the court below did not rightly affirm the decision of the trial Tribunal that the Respondent was qualified to contest the Enugu State Governorship Election of 18th March, 2023?(Grounds 2, 3, 4 and 5 of the Notice of Appeal)
3. Whether the court below was not correct, considering the applicable laws, in affirming the trial Tribunal’s resolution of the evidential issues before it. (Grounds 6, 7, 8, 9, and 10 of the Notice of Appeal)
4. Having regard to settled law, whether the lower court did not rightly strike out the Appellant’s reply brief and dismiss their appeal? (Ground 11 and 12 of the Notice of Appeal)
Dr. Onyechi Ikpeazu, OON, SAN, FCArb, who settled the 3rd Respondent’s brief identified 4 issues for determination of the appeal. The issues are as set out below:

1. Whether the Court of Appeal was wrong and occasioned a
• miscarriage of justice, when it dismissed the Appellant’s objection to the respective Briefs of Argument of the 2d and 3^rd Respondents, and discountenanced the Appellants’ Reply Brief on the premise that it was a rehash of the arguments canvassed in the Appellants’ main Brief. (Grounds 1 and 2)
2. Whether the Court of Appeal was correct to hold that the Tribunal was right to expunge and refuse to assess the Statements on Oath of PW 1, PW 2, PW 3 and PW 30 being subpoenaed witnesses whose Witness Statement on Oath contravened Section 285(5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), and paragraph 4 (5) of the First Schedule to the Electoral Act, 2022. (Grounds 2 and 3)
3. Whether the Court of Appeal was correct to hold that the Appellants failed to prove that the 2d Respondent was not qualified to contest election for the office of Governor of Enugu State by reason of presentation of a forged National Youth Service Certificate (NYSC) to the 1st Respondent.(Grounds 4 and 5)
4. Whether the Court of Appeal was correct to hold that the evidence of the Appellants’ witnesses lacked probative value and that the Appellants’ witnesses who testified as agents did not comply with the provisions of Section 43 (1) of the Electoral Act, 2022 and the 1st Respondent’s Regulations and thereby failed to prove their case. (Grounds 6, 7, 8, 9, 10 and 12)

I wish to give an opinion on issue 1 by the Appellants, which is issue 1 of the 1st Respondent’s brief, issue 2 of the 2nd Respondent’s brief and issue 2 of the 3a Respondent’s brief.
Learned Appellants’ Senior Counsel submitted that the court below erred in law by affirming the trial Tribunal’s decision expunging and refusing to assess the pieces of evidence adduced by PW 1, PW 2, PW 3, PW 26 and PW 30 called by the Appellants, together with the documentary exhibits tendered by/through these witnesses. The court below, in affirming the decision of the Tribunal, relied on some decisions, including OKE v. MIMIKO (2013) LPELR-20645(SC). It also based its decision on Section 285 (5) of the 1999 Constitution as amended and paragraphs 4 (5) and (6) and 14(2) of the 1st Schedule to the Electoral Act, 2022. Counsel argued that this decision is erroneous in view of the following authorities; DICKSON v. SYLVA
(2017) 8 NWLR (Pt. 1567) 167 at 192 E-H SC; UZODINMA v.
IHEDIOHA (2020) 5 NWLR (Pt. 1718) 529 at 556 (arguments) and 568 (decision) SC; ABUBAKAR v. INEC (2020) 12 NWLR (Pt. 1737) 37 at 110E SC and APGA v. AL MAKURA (2016) 5 NWLR (Pt. 1505) at 347C-F SC. Counsel submitted that in DICKSON v. SYLVA (SUPRA) and UZODINMA V. IHEDIOHA (SUPRA), this Court held as admissible the evidence of witnesses on subpoena whose testimonies were not frontloaded or filed within 21 days and also (in UZODINMA’s case) even evaluated same and gave weight to it. These decisions are binding on the lower Courts.

Senior Counsel contended that the issuance of subpoenas is regulated by the Evidence Act, 2011, which applies to and binds all courts of law, including the Court below without distinction- whether or not such courts are election courts. Also, that none of the Respondents applied to set aside the subpoenas issued by the Tribunal and being orders of that Court, were still binding on it and all the parties. Counsel also urged that the subpoenas having not been set aside, remained binding on the Tribunal; hence the Court below was in error of law when it affirmed the decision of the trial Tribunal which expunged the evidence adduced in accordance with its subsisting orders.
Counsel cited MEKWUNYE v. CARNATION
REGISTRARS LTD (2021) 15 NWLR Pt. 1798 Pg. 1 at 44 CA; OKEKE
v. UWAECHINA (2022) 10 NWLR Pt. 1837 Pg. 173 at 193. Counsel insisted that this Court contrary to the assumption of the court below did not rule on issuance of subpoenas on official witnesses in PETER G. OBI & ANOR V. INEC & ORS. Counsel argued that it was wrong of the court below to hold that whether they were ordinary or expert witnesses or official witnesses, they ought to have filed their written statements on oath as at the time of filing the petition. Counsel argued that it was wrong to throw out the evidence of PW. 1, PW. 3, PW. 30 who were official witnesses and sometimes adverse witnesses whose testimonies were incapable of being obtained at the time the petition was filed and which testimony could only be obtained at a latter date by subpoena. Counsel also argued that the part of the decision in OKE v. MIMIKO (supra) relied upon was an obiter in a concurring judgment which is not binding as precedent.

Learned Appellants’ counsel on this point invited this court to reverse itself and overrule its previous decisions in ATIKU ABUBAKAR v. INEC SC/CV/935/2023, delivered on 26/10/23 and OBI V. INEC SC/ CV/937/2023 delivered on 26/10/23. Counsel cited Or 6 R 5(4) of the Supreme Court Rules; ARDO v. NYAKO (2014) 10 NWLR Pt 1416 Pg. 591 at 627; VEEPEE INDUSTRIES LTD v. COCOA INDUSTRIES LTD (2008) 13 NWLR Pt.1105 Pg. 486 at 522-523; ABIOYE v.
ISMAIL (2023) 13 NWLR Pt. 1902 Pg. 431 at 479; KARSHI V.
GWAGWA (2022) 9 NWLR Pt. 1834 Pg. 139 at 169.

Counsel enumerated the circumstances which would warrant this court to overrule itself to include where the decision was reached per incurriam, has led to results which are unjust or undesirable, where to perpetuate the decision would inflict hardship and injustice upon generations in the future, and when broad issues of public policy are involved.
Counsel argued that the failure of the trial Tribunal to make a finding on the evidence tendered by the subpoenaed witnesses and the affirmation by the court below of this wrong procedure has led to a miscarriage of justice.

Counsel cited KOKO v. KOKO (2023) 13 NWLR Pt. 1901 Pg. 249 at
289. Counsel urged this court to employ its powers under Section 22 of the Supreme Court, Act to assess the oral and documentary evidence tendered by PW 1, PW 2, PW 3, PW 26 and PW 30 and to evaluate same to come to a just decision on this issue. Counsel cited ODEDO v. PDP & ORS (2015)
LPELR-24738.

Collectively, the learned Respondent’s counsel all argued on this point that the Tribunal was right to have discountenanced the evidence of PW 1, PW 2, PW 3 and PW 30 in view of the combined provisions of Section 285 (5) of the 1999 Constitution, Section 132(7) of the Electoral Act, 2022 and Paragraph 4(5) of the 1st Schedule to the Electoral Act.

The Court of Appeal is also right as it was merely following the binding decision of this Honorable Court on the point. Counsel argued that the Appellants had all the documents, names of the persons who they subsequently called by subpoena purporting not to be under the control of the Appellants.
Counsel argued that it was clear that before the conduct of the election, the Appellant already had the document from the NYSC and were aware of the various roles these witnesses played in the generation of the evidence they sought to present before the court. Counsel argued that the Appellants had adequate opportunity to challenge the 2d Respondent’s pre-election victory by challenging the contents of his Form EC9. The Respondent argued that the claim of the Appellants that they could not get the witnesses and the nécessary documents prior to the election is false since the exhibits relied on to proof forgery of NYSC Certificate were reproduced in the petition filed on 6/4/23. Counsel argued that the witnesses subpoenaed were not dispassionate witnesses who the Appellant needed to prove their case since they were witnesses who had supplied the Appellants with detailed information against the Appellant. Learned Counsel for the Respondent argued further that the Court of Appeal rightly followed the decision of this Court in SC/CV/935/2023 Between PETER GREGORY OBI v. INEC (unreported Judgment delivered on the 26th October, 2023) which affirmed 132 (7) of the Electoral Act, 2022 and Paragraph 4 (5) and 14 (2) of the 1st Schedule to the Electoral Act”, and obtained the witness statement on oath within 21 days, the Tribunal will be bound to give effect to the testimony of those subpoenaed witnesses.
Learned Respondent’s Counsel also submitted that the effect of the decision of the Tribunal is that the Appellants’ case of non-qualification erected solely on the evidence of these witnesses crumbled since the witnesses were available to the parties before the 21 days allowed to file petition and their depositions on oath could have been sought and obtained.

On the invitation by the Appellant to the effect that this court should overrule its decisions in SC/CV/935/2023 between PETER GREGORY OBI V. INEC delivered on 26/10/23 and SC/935/23 Atiku Abubakar & ors v., Counsel argued that the proposition that abides in the dictates of Section 285 (5) of the 1999 Constitution etc has led to unjust or undesirable decisions which we must now correct is untenable since this court cannot fill the gap created by the legislature in these statutes which have been interpreted using the literal rule of interpretation.

Counsel argued that unfortunately for the Appellants, the trial Tribunal failed to assess the expunged evidence of PW 26 and PW 30 and thus the jurisdiction of the Tribunal having elapsed by effluxion of time, this court also having lost jurisdiction cannot consider all the live issues decided on the merit by the trial court.
OPINION
My Lords, at this point, it is relevant to trace the evolution of the use of subpoenas and its procedure in election petitions. The history of subpoenas can be traced back to ancient Rome, where the concept of compelling individuals to testify or produce evidence was established. The term
“subpoena” itself is derived from Latin, meaning “under penalty.” Over the centuries, the use and nature of subpoenas have evolved, adapting to changes in legal systems and societal needs. The Romans developed the concept of “lex testis,” a legal process that compelled witnesses to appear and testify under oath. Failure to comply with a summons could result in penalties. The English legal system adopted the idea of compelling witnesses to testify, and by the medieval period, subpoenas were being used to summon witnesses.

These early subpoenas were often issued by the Crown or ecclesiastical authorities. In the 18th and 19th centuries, subpoenas continued to be an integral part of legal proceedings in England and were gradually imported into the American legal system through the colonies. The United States Constitution, ratified in 1787, includes the Sixth Amendment, which guarantees the defendant’s right to confront witnesses brought against him by subpoena. Subpoenas evolved in these jurisdictions and it became an instrument issued to compel the attendance of witnesses, the production of documents, or both. Nigeria adopted the common law through the influence of British colonial rule, which introduced English legal principles and institutions.

Through this process, the use of subpoenas became deeply rooted in the Nigerian legal system. The use of subpoenas continues to play a crucial role in ensuring the fair and just resolution of legal disputes. The authority of the courts to issue subpoenas is grounded in statutory provisions delineated in our substantive laws and the distinct Rules of various Courts.

Generally, Section 218 of the Evidence Act, 2011 empowers the court to summon an individual, whether or not a party to a case, to produce a document without testifying, while Section 219 of the Evidence Act 2011 clarifies that the act of producing a document in response to a summons does not automatically confer a witness status upon the subpoenaed witness and that such subpoenaed witness cannot be subjected to cross-examination unless and until they are formally called as a witness.

Beyond the confines of the Evidence Act 2011, several rules of court in Nigeria also incorporate provisions governing the issuance of subpoenas, thereby reinforcing and expanding the authority of the courts in this regard.

Prior to the introduction of the frontloading system in Nigeria, witnesses (including the ones on subpoena ad testificandum) in regular civil matters and election petitions testified orally. There was nothing like witness statements on oath. For example, in the 1st Schedule to the Electoral Act 2002, paragraphs 3 and 4 only require a Petitioner to file a Petition without any accompanying document or witness statement. In fact, paragraph 5 of the 1st Schedule to the Electoral Act 2002 provides that evidence need not be stated in the petition unless the Tribunal or Court requires it. It provides:
“5. Evidence need not to be stated in the election petition, but the Tribunal or Court may order such further particulars as may be necessary-
(a) 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; and
• on such terms as to costs or otherwise as may be ordered by the Tribunal or Court.”
Accordingly, witnesses on subpoena were permitted to provide oral testimony in the election petition proceedings throughout the 2003 election cycle. An early attempt at providing for what looks like frontloading was first officially made in Nigeria by the Federal High Court (Civil Procedure) Rules 2000.

In its Order 6 Rule 8, it is provided that before a writ is issued, it shall be accompanied (a) by a statement of claim (b) copies of documents mentioned in the statement of claim to be used in evidence (c) where the claim made by the plaintiff is for a debt or a liquidated demand only, also by a statement of the amount claimed in respect of the debt or demand, and for costs. –
In 2004, the frontloading system was effectively introduced in the High Court (Civil Procedure) Rules of Lagos State and the Federal Capital Territory aimed at ensuring an efficient and speedy dispensation of justice.

Subsequently, many states copied the Lagos and FCT High Courts rules. In 2006, the Electoral Act 2006 was enacted by the National Assembly.

However, the frontloading system was not provided for in the 1st Schedule to the Electoral Act 2006. On 29th March 2007, His Lordship, Umaru Abdullahi, CON, PCA, issued the Election Tribunal and Court Practice Directions 2007. The Practice Directions was to apply to the Presidential, Governorship, National Assembly and States Assembly election petitions. For the first time, the Election Tribunal and Court Practice Directions 2007 (Practice Directions) introduced the frontloading system into election petition proceedings. Paragraph 1 (1) of the Practice Directions provides:
“1.- (1)All petitions to be presented before the Tribunal or Court shall be accompanied by:
(a) list of all the witnesses that the petitioner intends to call in proof of the petition;
(b)
(c)
written statements on oath of the witnesses copies or list of every document to be relied on at the hearing of the petition.”
The Practice Directions became operational on 3rd April 2007.
Consequently, the 2007 election proceedings were conducted under the frontloading system. Following the issuance of the Practice Directions, the Court of Appeal had cause to render a decision on the frontloading of witness statements for a subpoenaed witness in Lasun v. Awoyemi (2009) 16
NWLR (Pt, 1168) 513. The facts of that case bear close scrutiny.

The Appellant had contested for the Irepodun/Olorunda/sogbo/Orolu Federal Constituency seat on the platform of the Action Congress Party and lost. He challenged the declaration of the 1st Respondent as the winner of the said election on the grounds inter alia that election in 15 wards in the said Federal Constituency was vitiated by substantial non-compliance with the mandatory statutory requirements of both the Constitution of the Federal Republic of Nigeria and the Electoral Act, 2006 which substantially affected the results. The Appellant commenced the election petition before the National Assembly Election Tribunal on 21st May 2007 praying that he be declared as the winner of the election and duly returned as such.

After the closure of pleadings, the case proceeded to trial. During trial, the Tribunal, upon an application by the Appellant, issued a subpoena duces tecum ad testificandum on the Osun State Resident Electoral Commissioner to bring all the electoral materials enumerated in the said subpoena and give evidence thereon. The Appellant, to prove his case, called 15 witnesses.

On17 November 2007, the Appellant moved the Tribunal to swear the representative of the Resident Electoral Commissioner present in court upon subpoena to be examined on the documents he had produced. The said application to examine the said INEC official was refused by the Tribunal on the grounds, inter alia, that the giving of notice to produce as contained in the Appellant’s petition had dispensed with the subpoena already issued and that the Appellant did not frontload the witness’ statement of the INEC official sought to be examined at the time of presentation of the petition.
Dissatisfied with this ruling, the Appellant appealed to the Court of Appeal.

Subsequently, the Petition was dismissed. By an amended Notice of Appeal, the Appellant appealed against the interlocutory decisions and the final judgment.

In its judgment, the court held on pp. 548 – 550 paras C – G, the court held that:
“It is pertinent and from all indications that it was the learned Tribunal by its ruling of 17th November, 2007 as stated somewhere in this judgment, that prevented the Appellant from tendering the said exhibits 16-31 through the Resident Electoral Commissioner despite the force of a subpoena ducestecum et ad testificandum and  relied on paragraph 1(1)(a), and of the Practice Directions which provision state:
“Ali petitions to be presented before the Tribunal or court shall be accompanied by:
• List of all witnesses that the petitioner intends to call in proof of the petition.
• Written statements on oath of the witnesses’ and
•C. Copies or list of every document to be relied on at the hearing of the petition.”
In other words, the interpretation is to the effect that written statements on oath of all witnesses shall accompany the petition; but upon failure, it shall not be accepted for filing by the secretary.
The 1st and 2d Respondents’ learned counsel submitted therefore that the non-indication of the intention by the Appellant to bring the application during the pre-trial and failure to file the depositions of the additional witnesses are both fatal to his case because it is a matter of compulsion.

Counsel cited a number of authorities in support to re-affirm that rules of court are meant to be obeyed. By the provision of the Practice Directions, it is expected that the written depositions of all witnesses ought to be attached to the petition.

It is pertinent to restate 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 Directions 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 words, it is not within the expectation of the said Practice Directions 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. The authority in the case of Onyekekwe v. L.D. Albert (2001) All FWLR (Pt. 83) 2166 at 6184 is relevant.

As rightly submitted by the Appellant’s learned counsel, the trial Tribunal in the circumstance had approbated and reprobated in its stand. In other words, it is not comprehensible that the Tribunal, who had prevented the Appellant from tendering exhibits 16 to 31 through the 4thRespondent, should proceed to say in its final judgment that the said same exhibits could not be relied upon because they were not tendered through the makers.

The general provision of the Practice Directions frontloading of witness’s deposition on oath only contemplates willing and voluntary witnesses and not one who had to be compelled by order of court to testify by way of a subpoena. It is not logical therefore that a party should prepare witness’s deposition for his adversary who is a Respondent against the petition.

Expecting that such witness would sign and adopt the deposition is beyond human reasoning as rightly submitted by the learned Appellant’s counsel. On the authority of the case of Michael Okaroh v. The State (1988) 3 NWLR (Pt. 81) 214 at 220 their lordship of the apex court said:
“The courts should see to it that justice is never defeated by technical rules of procedure. These rules should be seen as subservient hand-maid to justice, not as omnipotent masters at war with justice. “

Relevant and further in support is the case of Nwachukwu v.
The State (2004) 17 NWLR (Pt. 902) 262 at 274 per Adeniyi, J.C.A. Also of significance is the maxim lex non cogit ad impossibilia’ ie. to say the law does not command the impossible. Moreso where the petitioner at page 16 of the record of appeal clearly and in bold print stated that he “shall be calling about twenty five persons as witnesses”. The number had thus, not been exhausted.

It is further pertinent to emphasize that a subpoena is a court process commanding any person to attend to court and produce a document or evidence before it. This principle was well enunciated by their lordships of the apex court in the case of Muhammed Buhari & Anor. v. Chief Olusegun Aremu Obasanjo (2005) 13 NWLR (Pt. 941) 1 wherein same was interpreted as an order or writ of court, which may be for the person to attend the court and testify only, in other words, called subpoena ad testificandum or for him to produce document in his possession or control referred to as subpoena duces tecum.

A subpoena simplicity could also require the person to do both. See the case of Ambassador Obi-Odu v.
Duke& Ors. (2006) 1 NWLR (Pt. 961) 375 at 391 a decision of this court citing Fidelis Nwadialo: Civil Procedure in Nigeria, 2nd Edition, 2000 at 652. The effect of subpoena ad testificandum is that there is an obligation on the person subpoenaed to give evidence. The Resident Electoral Commissioner was therefore producing the required documents pursuant to the subpoena duces tecum et ad testificandum issued by the chairman of the Tribunal at the instance of the Appellant and not on account of the “notice to produce” mentioned in the petitioner’s petition. The Tribunal as rightly submitted by the learned Appellant’s counsel should not have shielded a witness on whom there was an order of court to give evidence, which was required to prove the Appellant’s case against the Respondent.

It is indisputable that, an aggrieved party has the responsibility and duty to produce evidence that would assist him in proving his case. The court also has the corresponding duty to allow a party to present his case and not help his adversary to suppress relevant evidence. As rightly submitted and argued by the Appellant’s learned counsel, therefore, the effect of the failure to comply with this principle of fair play is nothing short of the defeat of the Appellant’s fundamental right to fair hearing. The term fair hearing signifies a trial which is conducted according to the dictates of legal principles and rules formulated to ensure that justice is done to all the parties to a cause or matter. This is as clearly set out in the cases of Military Governor, Imo State v. Nwauwa (1997) 2 NWLR (Pt. 390) 675, Egbo v. Agbara (1997) 1 NWLR(Pt.
490) 293 Supreme Court decisions and Atejioye v. Ayeni(1998) 6 NWLR (Pt. 552) 132 a decision of this court.

The concept, in other words, has been judicially interpreted to involve situations where, whether having regard to all the circumstances of the case, the hearing may be said to have been conducted in such a manner that an impartial observer will conclude that the Tribunal was fair to all the parties to the proceedings.

With the Tribunal having issued subpoena duces tecum et ad testificandum on a competent and compellable witness but prevented him from giving evidence, such Tribunal cannot be said to have obeyed the hallowed principles of natural justice, equity and good conscience. More intriguing also was the holding and substitution of “notice to produce” for “subpoena duces tecum et ad testificandum”. The case of the Appellant, as rightly submitted by his learned counsel, has not received fair treatment in the circumstance.

Also on the evaluation of the evidence of witnesses, the court has unfettered duty to be very objective for the just determination of the case to all parties. In other words, it should not place itself in a critical and an impartial position of a purposeful sponsor arbiter, wrongfully favouring the evidence of one of the parties to the detriment of the other.” Based on the above-cited reasoning of the Court of Appeal, the Appellant’s appeal was allowed and the decision of the Tribunal was set aside for being in breach of the Appellant’s right to fair hearing. In a subsequent judgment of the Court of Appeal in Omidiran v. Etteh (2011) 2 NWLR (Pt. 1232)
471, the court maintained consistency with its earlier decision in Lasun v Awoyemi (supra). in Omidiran v. Etteh (supra), the Tribunal had issued two subpoena duces tecum and ad testificandum addressed to the 4th Respondent after the time for filing witness statements had elapsed but disallowed the representatives of the 4th Respondent from giving evidence for the Appellant on the ground that the Appellant did not file their witness statements along with the petition. The Tribunal also granted the Appellant’s application for inspection of documents in the custody of INEC but subsequently refused the said Appellant’s application to file additional
itself.

witness deposition to give evidence of the inspection and tender the report
In its judgment on pp. 500 – 502 paras. E – G, the court held that:
“A subpoena is a formal document issued by the court commanding a person required by a party to a suit to attend before the court at a given date to give evidence on behalf of the party or to bring with him and produce any specified documents required by the party as evidence or for both purposes. By a subpoena duces tecum the witness is ordered to produce specified documents while in the case of a subpoena ad testificandum the witness is ordered to appear and give testimony. See: Civil Procedure in Nigeria (2d edition) by Fidelis Nwadiallo at page 652; and Black’s Law Dictionary (8th edition) page 1467.

It is pertinent to observe at the outset that the procedure of summoning a witness to court by means of a subpoena duces tecum or ad testificandum is not provided for in the first schedule to the Electoral Act nor in the Practice Directions. By virtue of paragraph 50 of the First Schedule to the Electoral Act recourse may be had to the practice and procedure of the Federal High Court in the exercise of its civil jurisdiction, with such modifications as may be necessary to render them applicable having regard to the provisions of the Electoral Act.

•There is no doubt that the Practice Directions provides for the front loading of witness statements along with the petition and that evidence at trial shall be by adoption of the written statements followed by cross-examination. As noted earlier in this judgment, although the Practice Directions are meant to be obeyed, in the words of Pats Acholonu, JSC in Duke v. Akpabuyo Local Government(2005) 19 NWLR (Pt. 959) 130 at 142 – 143
and not to choke, throttle or asphyxiate justice. They are not a sine qua non in the just determination of a case and therefore not immutable.” The situation where a subpoena has been issued presents a slightly different scenario. Firstly, by its very nature, a subpoena is issued by the court at the instance of one of the parties to command the appearance of a witness who is not involved in the matter before the court or who is an adverse party to the party calling him to produce specified documents or to testify, or both.

It is therefore not envisaged that the statement of such a witness would accompany the petition. No procedure has yet been prescribed for the manner in which a subpoenaed witness should testify in election petition proceedings. in the instant case, as observed by learned counsel for the Appellant, the subpoenas, which clearly state that the witness would be required to produce documents and testify were issued and signed by the chairman of the Tribunal long after the time for presenting the petition had lapsed. In my view, it amounts to blowing hot and cold for the Tribunal to have issued a subpoena commanding a witness to appear in court to testify and then to turnaround and refuse to allow him to testify on the ground that his witness statement was not frontloaded.

In signing the subpoena, the Tribunal must have been satisfied that it was not frivolous and that it was necessary for the just determination of the petitioners case. There was no application before the Tribunal to set it aside. The witness, having been subpoenaed, ought to have been sworn in to testify.

Alternatively, in compliance with paragraph 50 of the First Schedule to the Electoral Act, the procedure for the issuance of subpoena under the Federal High Court Rules could have been modified to render it applicable in election petition proceedings by directing the applicant to depose the witness after he had appeared in court pursuant to the summons. See Paragraph 4 (5) & (6) (a) of the Practice Directions. In my view, that would have met the justice of the case. It was held in the case of Obi-Ocu v. Duke (2006) 1 NWLR (Pt. 961) 375 at 419 D that having regard to the sensitive nature of election petition proceedings and from the point of view of public policy, it was better for the court to allow a party subpoenaed to obey the subpoena.

The Tribunal would have been in a position at the conclusion of the trial to determine the probative value of the evidence elicited thereby Buhari v. Obase of the evidence elicited thereby. See Buhari v. Obasanjo (2005) 13 NWLR (941) 1• In election petition proceedings, it is in the interest of justice that parties are given full opportunity to ventilate their case without undue regard to technicalities. SS e Abubakar v. Var’ Adua (2008) 4NWLR (Pt. 1078) 538 at. 543 D – F; Aregbesola v. Oyiniola (2009) 14 NWLR (Pv.
1162) 429 at 478-479 G-B. In the case of Lasun v.
Awoyemi (2009) 16 NWLR (1168) 513 at 550 E-F this court held per Ogunbiyi J.C.A. thus:

“With the Tribunal having issued subpoena duces teame et ad testificandum on a competent and compellable witness but prevented him from giving evidence, such Tribunal cannot be said to have obeyed the hallowed principle of natural justice, equity, and good conscience. The case of the appellant………., has not received fair Treatment if the has not received fair treatment in the circumstance”

In light of all that I have said hitherto, I am of the view that the refusal of the Tribunal to allow the Appellant to file the inspection report and witness statement of Tiamiyu Adegboyega and the refusal to allow the subpoenaed witness to testify amounted to a breach of the Appellant’s right to fair hearing, as it prevented her from presenting all the facts necessary to support her petition. In the circumstances, issues 1 and 2 are hereby resolved in favor of the Appellant against the Respondents.”

From the above decision, it is obvious that the Court of Appeal held that the Tribunal’s refusal to allow the Appellant’s subpoenaed witness to testify amounted to a breach of his right to fair hearing. From the decisions of the Court of Appeal in Lasun v Awoyemi (supra) and Omidiran v Etteh (supra), it is obvious that the Court of Appeal was of the view that it would be unreasonable for a Petitioner to frontload the witness statement on oath of a subpoenaed witness.
Following these decisions, the Federal High Court (Civil Procedure) Rules 2009 (‘FHC Rules’) was issued. For the first time, Order 3 Rule 3 of the FHC Rules introduced the frontloading system in the rules for both 3 provides:

regular witnesses and subpoenaed witnesses, For emphasis, Order 3 Rule
3. (1)
summons shall be accompanied by: (a)
All civil proceedings commenced by writ of summons shall be accompanied by
(a) statement of claim,
(b)copies of every document to be relied on at the trial, Provided that dispute survey plans need not be filed at the commencement of the suit, but shall be filed within such time as may be ordered by the Court upon any application made under sub-rule 3 of this rule.
(c)list of non-documentary exhibits,
(d)list of witnesses to be called at the trial, and

(e) written statements on oath of witnesses;
Provided that;
(i) the statements on oath of witnesses requiring subpoena from the Court need not be filed at the commencement of the suit,
(ії) the witnesses who require subpoena or summons shall at the instance of the party calling them be served with Civil Form 1 (a) before the filing of the statements of such witnesses.”
Based on the above-cited provision in the FHC Rules, it is obvious that written statements on oath of witnesses (both regular and subpoenaed witnesses) were required to be filed along with a writ of summons.

Furthermore, Order 3 Rule 3 (1) (e) ii) provides that witnesses who require subpoena shall at the instance of the party calling them be served with Civil Form 1 (a).
In 2010, the Electoral Act 2010 was enacted. In the 1st Schedule to the Electoral Act 2010, the legislature introduced the frontloading system.
“Paragraph 4 (5) of the 1 Schedule to the Electoral Act 2010 provides:
(5) 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; and

(c) copies or list of every document to be relied on at the hearing of the petition.”
Furthermore, the Federal High Court (Civil Procedure) Rules 2019 was enacted in 2019. For the first time, it made more provisions for the procedure to be adopted for a witness on subpoena ad testificandum. Such a witness is expected to file a witness statement on oath. The provision also allows the witness who could not have been known at the time of filing the suit, to file his/her witness statement on oath AFTER the commencement of the suit without the leave of court. Please see the provisions of Order 3 Rules (1)
– (3) of the Federal High Court (Civil Procedure) Rules 2019 which provides as follows:Order 3– (1) Any civil proceeding commenced by a writ of summons shall be accompanied by-
(0) A statement of claim;
il) Copies of every document to be relied on at the trial;

(ili) tist of non-documentary exhibit;
(iv) List of the witness to be called at the trial;
(v) Written statement on oath of the witness; and (vi) An affidavit of non-multiplicity of action on the same subjectmatter.

1. 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.
2. A witness who requires a subpoena or summons shall, at the instance of the party calling them, be served with Civil Form 1(a) in Appendix 6 to these Rules before the filing of the statement of such a witness.

The above-cited order provides for the front-loading of a witness statement on oath at the filing of a suit. It, however, makes an exception for a witness on subpoena ad testificandum. A witness on subpoena does not need to file a witness statement on oath at the commencement of the suit at the Federal High Court. Since Paragraph 54 of the First Schedule to the Electoral Act 2010 (as amended) requires the practice and procedure applicable in an election petition to be nearly as possible to the practice and procedure obtainable at the Federal High Court, and there is no express provision in the 1st Schedule to the Electoral Act 2010 reass equite or me front we ong men on
Petition, one would expect that the decisions of the Court would tow the line of the provisions of Order 3 Rules (1) – (3) of the Federal High Court (Civil Procedure) Rules 2019. However, that’s not the case.
During the 2019/2020 election petition cycle, the Court of Appeal delivered many conflicting decisions. In BASHIR & ANOR v. KURDULA & ORS
(2019) LPELR-48473 (CA) at p. 20 para F, the Court held that:
“It follows that the provisions of Paragraph 4(5) (i) (b) and 41 (3) of the 1st Schedule on 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 throreh sibunal duces tecum ad testificandum, to testify Furthermore, in BASHIR & ANOR v. KURDULA & ORS (supra) at p. 31 para F, the Court held that:
“…it is settled law that there is no obedience to Rules of procedure in disobedience to attainment of justice. In other words, in the process of adhering to Rules of procedure the essence of justice should not be sacrificed. After all, the Rules of procedure are only handmaids of law to discover justice.

Therefore, where strict application of the Rules will result in a technicality to defeat rather than attain the justice of the matter, the rule must bow and the cause of justice should prevail. The Court must get round the Rule to do substantial justice in the matter. See LATEFF ADEGBITE & ANOR vS. AMINU AMOSU (2016) LPELR-40655 (SC). In the words of Pats Acholomu, JSC in Duke vS. Akpayubo Local Govt. (2005) 19 NWLR (Pt. 959) 130 (the Rules of Court) are to be used to discover justice and not to choke, throttle or asphyxiate justice. The paramount question here is whether these provisions are meant to be complied with by a subpoenaed witness who is a Respondent to an election petition.

In other words, is it within the contemplation of the 1st Schedule that a Respondent in an election petition should sign a deposition or written statement on behalf of the petitioner whose allegation in the petition he is defending? It seems to me that it will amount to a legal fallacy, logically and practically incongruent, barring any collusion or illegality, to expect a Respondent in an election petition to sign a written deposition in favour of the petitioner, or to require a petitioner to frontload as part of his petition, depositions of his opponent as one or more of the witnesses to be called at the trial in proof of his petition. 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 favor 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.”

In PDP v. Okogbuo (2019) LPELR-48989(CA) @ pp. 11-28 paras. D –
B, the court held that:
“In considering issues Nos. 1-4 together, all of which pertain to proof of the Appellants’ case, it is instructive to note that the election to the Abia State House of Assembly Bende South State Constituency was conducted by the 4th Respondent on the 9th March, 2019. The Petition was filed on the 29th March, 2019.

Then by Section 295(5) of the 1999 Constitution as amended, an Election Petition shall be filed within 21 days after the date of declaration of the results. It was stated in Oke vs. Mimiko
(2014) 1 NWLR Part 1388 (No. 1) page 225 at 261-263 by the Supreme Court that with election matters being sui genesis in nature they cannot therefore be treated in the same class as ordinary civil cases because of the constitutional recognition and the special legislations put in place to govern its conduct and procedure. P.W.1 and P.W.6 were subpoenaed witnesses.

As I observed earlier, the Petition was filed on 29/3/2019, exactly on the day of expiration of the period of 21 days from 9/3/2019 when the result of the election conducted on the same date was declared. By the provisions of Paragraph 4(5) of the First Schedule to the Electoral Act, 2010 as amended, the said Election Petition filed by the 1st and 2nd Respondents herein on the last day of the 21-day period from 9/3/19 shall be accompanied inter alia by all the Written Statements on Oath of the Witnesses. This clearly implied that all the Witness Statements on Oath shall have been filed on or before the 29th March, 2019. However, a cursory look at the Witness Statements on Oath of P.W. 1 and P.W.6 displayed at pages 522 and 523 of the record respectively, reveals that they were filed on the 27th August, 2019 and 28th August, 2019 respectively.

By the stipulations of the Electoral Act, 2010 as amended, they ought to have been filed along with the Petition on 29/3/19 i.e. on the exact date of expiration of the 21 day period. It is clear by the records before this Court that P.W.1 and P.W.6 were subpoenaed to appear before the Tribunal based on the applications of the Petitioners. They were not summoned by the Tribunal suo motu as envisaged by the provisions of Paragraph 41(5) and (6) of the First Schedule. Then Sub-paragraph (8) unequivocally stipulated that except with the leave of the Tribunal or Court after an applicant has shown exceptional circumstances, no document, etc, shall be received in evidence at the hearing of a Petition unless it has been listed or filed along with the Petition in the case of a Petitioner or filed along with the Reply in the case of the Respondent. What this postulates is that for any document not filed along with the Petition or Reply as the case may be, to be used during the hearing of a Petition, the leave of the Tribunal must be obtained. P.W.1 and P.W.6 were summoned to give evidence before the Tribunal on the applications of the Petitioners i.e. the Appellants.

They were not summoned by the Tribunal suo motu, therefore, the Petitioners had the duty to file their depositions at the time of filing the Petition. It follows that once a witness was summoned via a subpoena based on the application of a party to the Petition, the provisions of Paragraph 4(5) of the 1st Schedule to the Electoral Act, 2010 as amended shall be complied with. Paragraph 4(5) (i) of the 1st Schedule says that Election Petition shall be accompanied
• A list of witnesses that the Petitioner intends to call in proof of the Petition.
• Written Statement on Oath of the Witnesses and
• Copies of list of every document to be relied on at the hearing of the Petition.
• A Petition which fails to comply with Sub- paragraph (1) of this paragraph shall not be accepted by the Secretary.

In Oke vs. Mimiko (supra), it was stated that the use of the word “shall” is very instructive, mandatory and conclusive, in other words, the provisions do not allow for additions. Then Paragraph 41(8) of the 1st Schedule says that: “Save with the leave of the Tribunal or Court no document plan, or model shall be received in evidence at the hearing of a Petition unless it has been listed or filed along with the Petition in the case of the Petitioner or filed along with the Reply in the case of the Respondent.”

It is trite law 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. See the judgment of this Court in the case of Ararume vs. INEC in Appeal No. CA/OW/EPT/GOV/02/2019 delivered on the 23rd August,2019.

The only exceptions to the position are clearly set out in Paragraph 41(5) and (6) of the 1st Schedule as amended. By Paragraph 41(1) and (3) of the 1st Schedule of the Electoral Act, 2010 as amended, any fact that is required to be proved at the hearing of a Petition shall be proved by Written Deposition and oral examination of witnesses in open Court. There shall be no oral examination of a witness during his evidence in chief except to lead the witness to adopt his deposition and tender in evidence all disputed documents or other exhibits referred to in the Petition. The principle reiterated by this Court in its judgment in the case of Ararume vs. INEC & Ors (2019) LPELR-48397(CA) delivered on the 23rd August, 2019 is quite apt to the scenario in the instant appeal where the Witness Depositions of P.W.1 and P.W.6 subpoenaed upon the applications of the Appellants, and not by the Tribunal suo motu, were not filed alongside the Petition as mandated by the Electoral Act, and outside the 21 day period prescribed by the 1999 Constitution of the Federal Republic of Nigeria as amended for the presentation of the Petition. The principle is that 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. Tsammani, J.C.A., on whether a statement on oath or a document not frontloaded within the time prescribed for filing of a petition can be employed in the prosecution of the petition without the leave of Court or Tribunal first sought and obtained relied on the decision in Ogba vs. Vincent (2015)LPELR-40719(CA) and stated thus: “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 subpoena 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 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 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 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 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 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 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) 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 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 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 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 summioned 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, 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 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.”? What is deductible is that a Written Deposition filed by a witness not listed in the Petition nor frontloaded cannot be countenanced by the Court or Tribunal after the expiration of the time prescribed for the filing of the Petition. It was stressed by this Court therein that to allow a Petitioner to file an additional witness statement at any stage of the Election Petition proceedings would destroy the regulated environment that must exist to ensure that both parties to the Petition are expeditiously heard and the Petition determined within 180 days from the date of the Petition. This Court observed that such an indulgence would remove the control of the pace of proceedings from the control of the Constitution, the Electoral Act and the First Schedule to the Electoral Act and leave it at the whim of the parties and open the floodgate for all kinds of abuses of the judicial process. This Court in Ararume’s case noted that even though P.W.2 was before the Tribunal on a subpoena, the said witness was summoned on the application of the Appellants. It observed that he was not summoned by the Tribunal in the exercise of its powers pursuant to Paragraph 41(5) and (6)of the First Schedule to the Electoral Act. He was therefore for all intents and purposes, a witness for the Appellants and 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. Tsammani, J.C.A, fully articulated his unwavering view in support of the findings and conclusions of the Tribunal that the Witness Deposition of P.W.2 having been filed out of time, without leave of the Tribunal rirst had and obtained, the witness cannot therefore be sworn to give oral evidence on behalf of the Petitioners. The Court still took cognizance of the consideration of the provisions of Order 3 Rule (3) of the Federal High Court (Civil Procedure) Rules, 2009 and Civil Form 1(A) raised suo motu by the Tribunal and stated that even without the said issue having been raised, the decision of the Tribunal would have remained the same. It then affirmed the decision of the Tribunal in that case.

I have no reason whatsoever to depart from the clear decision of this Court in Ararume’s case, and, I therefore, adopt and apply the same of this Court to the instant appeal. In the light of the concordant view and endorsement herein, I hereby hold that it was utterly wrong of the Tribunal to have countenanced the Witness Statements on Oath of P.W.1 and P.W.6 which were not filed along with the Petition of the Appellants on 29/3/2019 and which were filed outside the 21 day period circumscribed by the 1999 Constitution of the Federal Republic of Nigeria as amended for the presentation of an election Petition. The said Witness Statements on Oath of P.W.1 and P.W.6 filed on 27/8/19 and 28/8/19 respectively without the leave of the Tribunal are therefore incompetent and ought not to have been adopted by the said witnesses as their evidence in chief.

The only authentic means by which they would have aided the Petitioners to prove the facts averred in their Petition were by filing of their Written Depositions along with the Petition which ought to be adopted by them as their evidence-in-chief at the hearing of the Petition. In Andrew vs. INEC (supra) the Supreme Court, per Okoro, J.S.C., made it clear that in an election petition proceedings, the provisions of Paragraph 41 (3) of the First Schedule to the Electoral Act 2010 (as amended) made it crystal clear that evidence-in-chief of a witness is his witness statement on oath which he is only permitted to adopt and nothing more. After adoption, the said witness statement on oath becomes his evidence-in-chief. The only other aspect of what will constitute part of the record and/or evidence is his answers to questions during cross-examination, It follows that anything other than the adoption of his witness statement on oath during examination in chief, cannot by any streteh of imagination quality as his evidence-in chieh be that as it may, since their said Written Depositions were filed out of time without the leave of the Tribunal, it follows that all the facts deposed therein by P.W. and P.W.6 shall come to nought and ought not to have been referred to or relied upon by the Tribunal in its findings of fact.”

This was also the opinion of the court in Ararume V. INEC (2019) LPELR-48397 (CA), Therefore, while the Court of Appeal in Lasun v Awoyemi (supra)/ Bashir v, Kurdula (supra); and Omidiran v. Etteh (supra) decided that a witness should not be shut out from testifying just because his witness statement on oath was not filed along with the Petition and that the provisions of paragraph 4 (5) of the 1% Schedule to the Electoral Act 2010 does not envisage a subpoenaed witness, the Court of Appeal decided in PDP V Okogbue (supra) and Ararume v INEC (supra) that a subpoenaed witness cannot testify orally and such witness’ written deposition must be filed along with the Petition,
In the case of ANDP V, INEC (2020) LPELR-58279(CA) @ pp. 36 – 63 paras, D – D, the Court of Appeal, aligning with the precedents set in PDP v Okogbue (supra) and Ararume v INEC, deviated slightly in its stance when it affirmed the decision of the Tribunal which allowed the Appellant’s witness to testify orally, The court also went further to hold that even though a witness statement on eath of a subpoenaed witness filed outside the provision of paragraph 4 (5) of the Electoral Act 2010 was incompetent, a party Intending to rely on it can apply for extension of time. Please hear their Lordships, thus:

“The best approach and way forward for the Appellant when he realized he needed to call PW1 as a subpoenaed witness would have been to file formal application to extend time to file a witness statement on oath pursuant to Paragraphs 45 and 47 of the 1st Schedule to the Electoral Act 2010 as amended all of which provide: “45. (1) The Tribunal or Court shall have power, subject to paragraph 16 of this Schedule, to enlarge the time for doing any act or taking any proceeding on such terms (if any) as the justice of the case may require except as otherwise provided by any other provision of this Schedule. (2) An enlargement of time may be ordered although the application for the enlargement is not made until after the expiration of the time appointed or allowed. (3) When the time for delivering a pleading or document or filing any affidavit, answer or document, or doing anything or act is or has been fixed or limited by any of the sections, paragraphs or rules under or in pursuance of this Act or by a direction or an order of the Tribunal or Court, the costs of an application to extend the time, where allowed or of an order made there on shall be borne by the party making the application unless the Tribunal or Court otherwise orders. (4) Every application for enlargement or abridgement of time shall be supported by affidavit. (5) An application for abridgement of time may be ex parte, but the Tribunal or Court may require notice of the application to be given to the other parties to the election petition. (6) An application for enlargement of time shall be made by motion on Notice to the other party to the election petition but the Tribunal or Court may, for good cause shown by affidavit or otherwise, dispense with the notice. (7). A copy of an order made for enlargement or abridgement of time shall be filed or delivered together with any document filed or delivered by virtue of the order. 47. 1 No motion shall be moved and all motions shall come up at the pre-hearing session except in extreme circumstances with leave of Tribunal or Court. 2.

Where by these Rules any application is authorised to be made to the Tribunal or Court, such application shall be made by motion which may be supported by affidavit and shall state under what rule or law the application is brought and shall be served on the Respondent 3. Every such application shall be accompanied by a written address in support of the reliefs sought. 4. Where the Respondent to the motion intends to oppose the application, he shall within days of the service on him of such application file his written address and may accompany it with a counter-affidavit. 5. The applicant may, on being served with the written address of the Respondent file and serve an address in reply on points of law within 3 days of being served and where a counter-affidavit is served on the applicant he may file further affidavit with his reply. See also AIRHIABERE V. OSHIOMOLE & ORS SUPRA pages 18 – 19 per TOM SHUTABU YAKUBU JCA of blessed memory who said:
“However, where the petitioner, such as the Appellant herein, in an application at his instance wishes to add some other witnesses Into his petition, the Tribunal or Court, hearing the petition, possess the discretionary power to grant or refuse the application as the case may be, depending on the facts and circumstances of the particular case. See Paragraph 45(1) (2)
(3) of the First Schedule to the Electoral Act 2010 (as amended) and Order 19 Rule 10 of the Federal High Court (Civil Procedure) Rules 2009 which is applicable to election petitions by virtue of Paragraph 54 of the First Schedule to the Electoral Act 2010 (as amended). It is indisputable that the Appellant’s application for the introduction of 18 additional witnesses depositions/statements into his petition, after all the parties to the petition have joined issues and exchanged their pleadings, was eminently at the discretion of the lower Tribunal which exercised its discretion and granted the Appellant’s prayer with respect to his own (petitioner’s) written deposition on oath.” This the Appellant failed to do as it erroneously believes that Order 3 Rule 3 of the Federal High Court (Civil Procedure) Rules 2019 is applicable and could remedy the situation. It cannot.” The Court of Appeal, as evident from the above, determined that Order ?
Rule 3 of the FHC Rules, which allows the filing of a witness statement oath from a subpoenaed witness after the commencement of the suit, es not apply to election proceedings. Nevertheless, the court still establis ed a mechanism wherein a party seeking to rely on such a witness stateme could apply to the Tribunal for an extension of time.

The decision of the Court of Appeal in ANDP v. INEC (supra) was the latest decision of the Court of Appeal until the enactment of the Electoral Act 2022 and the commencement of the 2023 election petition proceed gs cycle.

At the Presidential Election Petition, the court in the unreped judgment of Mr Peter Gregory Obi v. INEC & 3 Ors CA/PEPC/05
023 delivered on 6th September 2023, had to consider the issue as to ether the witness
statements of some of the witnesses on subpoena ced by the Petitioner were competent considering that they were not filed ong with the Petition.

In its judgment, the Court of Appeal, drawing or precedent from PDP v Okogbuo (supra) and Ararume v INEC (sua), as well as ANDP v. INEC (supra), held that the decisions in Lasu Awoyemi (supra) and Omidiran v. Etteh (supra) were inapplicable considering that they were determined under the Electoral Act 2006, which had no provision like paragraph 4 (5) of the 1st Schedule to the Electoral Act 2022.

The Court held that by the combined provisions of Section 285(5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), Section 132(7) of the Electoral Act, 2022 and Paragraphs 4 (5) and (6) and 14 (2) of the 15 Schedule to the Act, every written statement on oath of the witnesses which a party intends to call must be filed along with the petition within the time limited by Section 285(5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Section 132(7) of the Electoral Act, 2022. The Court cited Oke & Anor. V. Mimiiko &-Ors (2014) 1 NWLR (part 1338) 225.

The Court further held that once the time limited for filing of a petition has elapsed, the contents of the Petition cannot be added to or amended in any manner or under any guise. Any written statement on oath of a witness filed outside the 21 days limitation will amount to a surreptitious amendment of the Petition and a breach of Paragraph 14 of the 1st Schedule to the Electoral Act, 2022.

This is irrespective of whether the witnesses to be called are ordinary or expert witnesses and whether they are willing or subpoenaed witnesses. The Court further held that any written deposition of a witness not filed along with the petition will not be countenanced by the Court or Tribunal, and a petitioner cannot be allowed to file and use documents or witness statements on oath filed outside the time set for filing a petition and to which the Respondents would have no opportunity to react. To do so will amount to creating an avenue which a petitioner can use or exploit to overreach the Respondent(s).

The Court pointed out that the proviso to Order 3 Rule 3(1) of the Federal High Court (Civil Procedure) Rules, 2009 is without regard to and/or subject to the provisions of the Electoral Act and not independent of the Act and that the provisions of the Electoral Act being a substantive law shall override any rule of Court which is contrary to its provision. The Court cited NNPC v. Famfa Oil Ltd (2012) LPELR-7812 (SC) to the effect that the proviso to Order 3 Rule 3(1) of the Federal High Court (Civil Procedure) Rules, 2009 cannot override or affect or whittle down the absolute and mandatory provisions of Section 285 (5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which stipulates that an election petition shall be filed within 21 days after the date of the declaration of result of the elections and Paragraphs 4(1) and (5) and 14
(1) and (2) of First Schedule to the Electoral Act which stipulate the content of a petition.
On this basis, the court declared that the witness statements on oath filed for the Petitioner’s subpoenaed witnesses were incompetent.

It is important to reiterate that in arriving at this decision, the Petitioner did not i) frontload the witness statements on oath of the subpoenaed witnesses ii) the Petitioner did not seek the leave of the Court to extend time to file the witness statements on oath of the subpoenaed witnesses. Therefore, the court had no opportunity to consider the window opened by the court of appeal in ANDP v INEC (supra) to the effect that such a Petitioner can apply for leave to call oral evidence through the subpoenaed witnesses or apply for extension of time.
The decision of the Court of Appeal was affirmed by this court in ABUBAKAR ATIKU & ANOR v. INEC & 2 ORS SC/ CV/935/2023 delivered on 26/10/23 Supreme Court in the same case cited above. In its unreported judgment on pages 81 – 85, the court held that:

“My noble Lords, a combined reading of section 285(5) of the Constitution of the Federal Republic of Nigeria (as amended) and paragraph 4(5) of First Schedule to the Electoral Act, 2022 shows that the time limit for the filling of written statement on oath of witnesses in election petition proceedings is 21 days from the date of declaration of results.
As was pointed out by counsel for the Respondents, due to the sui generis nature of election proceedings, amendment to the petition or calling of additional witnesses will not be entertained after the statutory time limit for the filing of the petition has expired. Thus, a petitioner cannot present his case in bits otherwise the Respondents rights’ to fair hearing will be breached. This was the position of this court in Oke Vs. Mimiko (No) (sic) (2014)1 NWLR (Pt.1388) 225.
In his contributory judgment, in the above case, Ogunbiyi, JSC (rtd) made the following decision.
“By paragraph 4(1) and (5) of the first schedule to the Eiectoral Act, a composite analysis of contents of an election petition has been spelt out and also a list of materials which must be accompanied. The use of the word shall in the subsections is very instructive, mandatory and conclusive.

In other words the provisions do not allow for additions and hence the procedure adopted by the Appellants in seeking for extension of time is nothing other than surreptitious attempt to amend the petition. Expressly, there is no provision in the Legislation which provides for extension
-of time. What is more, vide paragraph 14(2) of the 15t schedule to the Electoral Act, the Appellants by section 134(1) of the Act had been totally fore- closed from any amendment which was in fact the hidden agenda promoting the application……
Further still and on a critical perusal of the application, relief 2 seeks “leave to call additional witness, to wit A.E.O”.

It is pertinent to restate that at the close of pieadings, parties had submitted the list of witnesses who were to testify together with their deposition. The idea, purpose and intention of the application is suggestive of nothing more but a clear confirmation seeking an order for an amendment as rightly and ingeniously thought out by the trial Tribunal and also affirmed by the lower court, This will certainly violate the provisions of section 285(5) of the constitution and
– section 134 of the Electoral Act

It has to be emphasized that the use of the word “shall’ in paragraph 4(1) and (5) of the 1st schedule to Electoral Act makes it mandatory and conclusive. The question may be asked; can a court extend time circumscribed by the constitution for a party to do a thing, he could not do before the expiration of the time? The obvious answer is no. Such provisions like section 285(5) of the constitution are mandatory and any exercise of discretion by the court is without jurisdiction and therefore a nullity.

In APC vs. Marafa (2020)6 NWLR (Pt.1721)383 at 423, this court held that applications for extension of time to call additional witnesses and to file additional witnesses statements after the prescribed period for presenting election petitions are not permitted because election matters are time bound and by reason of being sui generis, the procedure in handling them are stricter than ordinary civil matters. See also Ararume vs. INEC (2019), LPELR-48397 at 33.

The learned counsel for the Appellants had argued that the law does not compel the impossibility and that subpoenaed witnesses should be allowed to testify but as was argued by the learned senior counsel for the 1st Respondent, A. B. Mahmoud, SAN, subpoenas are not a tool with which to circumvent the provisions of the law and the effect and purpose of section 285(5) of the constitution and paragraph 4(5) of the first schedule to the Electoral Act 2022. It is on this note that I hold that the decision of the court below to strike out the offending witness depositions cannot be faulted. I resolve this issue against the Appellants.” There is no doubt that the attendance of a witness, who is truly not under the control of a party to render evidence at a tribunal, may be effected only by a subpoena. That with respect, changes absolutely nothing. The court will take judicial notice that election tribunals were constituted before elections took place. As a matter of fact, the Chairman of the tribunal was statutorily authorized to sit alone and grant such orders as may enable the Petitioners to effectively prosecute their petition.

There is no doubt that the election took place on 18th March, 2023 and from paragraph 16 of the Petition, the result was declared on 22d March, 2023.

By mere computation of the statutory requisition, the Petition ought to be filed not later than 12th April, 2023. The record shows that as of 29th March, 2023, long before the Petition was filed, the Tribunal sat and granted the Appellants leave to argue the motion for Inspection outside the Pre-hearing, and equally granted the substantive reliefs sought in the application (see the Order at page 19 to 23 Volume I ROA). Likewise, on 11* April, 2023, before the date limited for the filing of the Petition, the Tribunal granted the Appellants favorable Orders, both indication that the Appellants had a right to and indeed, approached the tribunal for Orders before the time limited for the filing of the Petition elapsed. The Appellants thus had right to approach the tribunal within the stipulated time to obtain orders of subpoena from the Tribunal in order to secure the Witness Statements which would have accompanied the Petition. The tribunal similarly was disposed to, and indeed granted favourable Orders to the Appellants within the time the Appellants would have easily obtained such Orders of subpoena for the Witness Statements of such persons to be filed, either along with the Petition, or within the stipulated time.

Examination of paragraphs 24, 25, 26, 27, 28 (a) (b) (c) (d) (e) and (f) of the Petition will easily disclose that the pleadings therein are virtually verbatim of what was transferred into the Witness Statements of the PW 1, PW 2 and PW 3. Certainly, PW26, adopted same as his evidence which mirrored the Petition. This discloses, that the facts which formed the basis of the allegation of non-qualification of the 2d Respondent, were available to the Appellants in remarkable details that such could not have come from sources other than the subpoenaed witnesses. It is understandable that the court may not proceed to this extent, but at least, those alleged facts were, unequivocally available to the Appellants at the time the Petition was filed, as otherwise they would not have formed the integral part of the Petition.

No doubt, the Respondents who were served the Petition with accompanying Witness Statements, justifiably relied on what were disclosed, to prepare responses to the witnesses whose testimonies were frontloaded. It is thus over-reaching and smacks of denial of the Respondents’ right of fair hearing, for witnesses who would have been compelled to depose to Witness Statements that should accompany the Petition, are concealed and then suddenly emerge with Witness Statements, ostensibly under subpoena, in the morning of a scheduled hearing, to adopt same. At such time, the Respondents had fully joined issues and provided Witness Statements commensurate with those whose testimonies were frontloaded with the Petition:

In this case, the Appellants, created a case of complete helplessness for the Respondents and deprived them of the right to fair hearing. The court below rightly rejected the evidence. Where evidence was available as in this case, well before the election, the party seeking to tender such evidence must immediately seek a subpoena, execute same and get the necessary witness or witnesses to swear to a statement on oath within the time stipulated by the Constitution. This is an issue that could have been fought as a pre-election matter.

we are concerned with the
constitutional eligibility of the Respondent. Section 29 of the Electoral Act, 2022 is the enabling provision conveying the basis for the applicability of Section 177, 182 & 318 of the 1999 Constitution (as altered).

According to PW 30, the staff of INEC, the 2nd Respondent never submitted an, NYSC Certificate, fake or genuine with the Form EC 9,. That is an admission against interest by the Appellant’s witness. In any event, it is apparent that if a false NYSC Certificate exists, the 2nd Respondent was dever enough not to run foul of Section 182(i) (i) of the 1999 Constitution (as altered). Proof of participation as National Youth Service Corps member after graduation from a tertiary institution is not one of the qualifications for Governorship contained in Section 177 of the 1999 Constitution. In the circumstances, this appeal has no merit and it is hereby dismissed. Before I allow the ink to dry on my pen, I wish to add some thoughts for further consideration on this issue of proof of an election petition.

My Lords, the combined effect of Section 285(5) and
(6) of the 1999
Constitution (as altered) Section 132(7) and paragraphs 4, 10(2), 12 and 14 of the First Schedule to the Electoral Act, 2022 deal with the regulation of the time within which election petition and reply to election petition are to be filed and what the contents of these processes should be. These provisions of the law have been interpreted as not permissive of the presentation of any material fact outside the time prescribed for the presentation of an election petition.
The hitherto referred to provisions of the law were interpreted by this Court in Oke v Mimiko (supra) as preventing the petitioner from bringing a motion seeking leave to call additional witnesses or evidence for the purpose of maintaining a petition through fresh evidence or facts discovered in the execution of the order of the Governorship Election Petition Tribunal for inspection and examination of documents used for Ondo State Governorship election by the Independent National Electoral Commission. In that case, this Court made a pronouncement to the effect that any material fact that is not filed within the time prescribed for the presentation of an election petition cannot be brought in, as that would offend the provisions of paragraph 14(2)
(a) and (b) of the First Schedule to the Electoral Act, irrespective of the mode through which the petitioner approaches the Tribunal. In Oke v Mimiko (No. 1) (2014) 1 NWLR (Pt. 1388) 225, 253-254, this Honourable Court held:-“If there was an (sic) evidence which was fundamental to the determination of the petition, that evidence ought to have been placed willy-nilly before the Tribunal within the time limit specified by the Electoral Act or any other Act. That evidence ought to be regarded as the spinal cord of the petition even if it was being withheld by any person, there are several ways to go about placing same before the Tribunal. The Evidence Act is very clear on this.
The Petitioners ought to have resorted to that procedure. It was never done. I am in tandem with the learned SANs for the 1st and 2nd Respondents in their submission that the ground upon which the Petitioners wanted to bring in facts that were not available to them at the panel of the petition, is an admission by the Petitioners that it was an attempt by them to introduce new facts which were not available at the time of filing the petition. This clearly offends the provision of paragraph 14(2) (a) and (b) of the Act referred to earlier. This irrespective is of the mode the Petitioners/ Applicants approach the Court: either for extension of time to do an act or for an amendment to the petition, the result is the same, it must have impact on the petition. The refusal of the application by the Supreme Court is quite justified.”

The mode in focus for the presentation of fresh facts in Oke v Mimiko (supra) was by way of motion for leave to bring in additional witnesses and evidence. While current jurisprudence of this Court in Abubakar Atiku & Anor v INEC & 2 Ors SC/CV/935/2023 affirmed Oke v Mimiko as authority for excluding a statistician report which was not filed along with the petition or filed within the period for the presentation or amendment of the petition, this Court extended the rule to prevent the presentation of evidence through subpoenaed witnesses whose statements on oath were not filed along with the petition, but were sought to be brought after the period for the presentation or amendment of the petition had elapsed.
My Lord, I wish to state by way of obiter, that there is no doubt that the decisions of this Court disallowing the presentation of fresh facts or evidence after the time for the presenting or amending election petition is purely based on the implementation of the time schedule contained in the Constitution and the Electoral Act to deal with such matters. The position of this Honourable Court is consistent with the public policy or interest, which requires that post-election litigation should be disposed of expeditiously so that, as quickly as possible, elected public officers are allowed to settle down to carry out the functions of their offices for which they were elected.
However, there is also the need to ensure that justice is not sacrificed on the altar of speedy hearing of election cases. There are cases which the circumstances may require that justice can only be done through the hearing of a witness who is unavailable to an election litigant as putative witness, either because such person is subject to the Official Secret Act and his volunteering information to a litigant would amount to a breach of his duty to keep official secret. The law will not compel the impossible. There may also be cases where the duties of a public servant needed as a witness requires that he is impartial and fair to all members of the public and his volunteering information to a private litigant such as petitioner may lead to a breach of his duties of impartiality and fairness. A good example in the second category are police officers, who are usually deployed to monitor elections. In deserving cases, this Honourable Court may need to balance public interest in expeditious disposal of election cases with the requirement of fair hearing, and therefore allow the compelling of attendance of appropriate public servants through the instrumentality of subpoena in election cases.
It is important to state that the above view as stated earlier are expressed by way of obiter and in the peculiar circumstances of this case as explained earlier are not applicable.
In any event, whatever my views, I am bound to determine the case on the decision laws as laid down in ABUBAKAR ATIKU & ANOR v. INEC & 20RS SC/V/935/2023.
The Appellants have not successfully proved that the 2nd Respondent presented a fake NYSC Certificate or that he ran foul of Section 177 or 182 of the 1999 Constitution (as altered). In the circumstances, this appeal is devoid of merit and it is hereby dismissed. I abide by the Order as to costs in the lead judgment.
HELEN MORONKEJI OGUNWUMIJU
JUSTICE, SUPREME COURT.

APPEARANCE
S. T. Hon, SAN with Dr. V. J. O. Azinge, SAN, Chief A. C. Eles, tort Appellants.
SAN, Eyitayo Fatogun, SAN and Mrs. Ríta. Chris Garuba, Esa, For the Abdul Mohammed, SAN, with Sanusi Musa, SAN, Rilwan. Idris, Esa, Obiabo. F. Amedu, Esq and Princewill. Obinna. Amiukwu, Esg for the 1st Respondent.
Chief Wole Olanipekun, SAN, Chief D.D. Dodo, SAN, Chief A J. Offiah, SAN, B. Olanipekun, SAN and B. Nwosu Esq for the 2nd Respondent.
Dr. Onyechi Ikpeazu, SAN, Anthony Ani, SAN, Tochukwu Maduka SAN
Dr. Obinna Onya, Esq and Julius Mba, Esq for the 3Rd Respondent.