- JOHN INYANG OKORO
- MOHAMMED LAWAL GARBA
- HELEN MORONKEJI OGUNWUMIJU
- TIJJANI ABUBAKAR
- EMMANUEL AKOMAYE AGIM SC/CV/ 1130/2023
- JUSTICE, SUPREME COURT
- JUSTICE, SUPREME COURT
- JUSTICE, SUPREME COURT
- JUSTICE, SUPREME COURT
- JUSTICE, SUPREME COURT
BETWEEN:
- EDEOGA CHIJIOKE JONATHAN
LABOUR PARTY
AND
- INDEPENDENT NATIONAL ELECTORAL COMMISSION
- MBAH PETER NDUBUISI
- PEOPLE’S DEMOCRATIC PARTY
Appellants
Respondents
JUDGMENT
(Delivered by MOHAMMED LAWAL GARBA, JSC)
This appeal is against the decision of the Court of Appeal, sitting at Lagos contained in the judgment delivered on 10″ November 2023 in the
LION, JUSTICE MOTIAMMED LA WAL GARBA. JSC
Appellants’ Appeal No. CA/E/EP/GOV./EN/21/2023 by which the appeal was dismissed and the decision of the Enugu State Governorship Election Tribunal (trial tribunal) in petition No. EPT/EN/GOV./01/2023 was affirmed.
The Appellants; as a candidate and the political party who sponsored the candidate, and the 2″‘ and 3″ Respondents had participated in the election for the office of Governor of Enugu State, conducted by the 1″ Respondent on 18″ March 2023, at the end of which, the 2″‘ Respondent was declared and returned as the winner.
Aggrieved by the declaration and return of the 2″‘ Respondent as the winner of the said election, the Appellants in line with the provisions of the Electoral Act, 2022, challenged the declaration and return by way of an election petition before the trial tribunal, on three (3) grounds as follows:-
“I. The 2″‘ Respondent was at the time of the election not
qualified to contest the election.
1. ” The 2″ Respondent was not duly elected by majority of lawful votes cost at the election.
2. The Election and Return of the 2″ Respondent is invalid by reason of non-compliance with the Electoral Act, 2022″.
At the end of the trial, the petition was dismissed and the declaration and return of the 2″‘ Respondent as the duly election Governor of Enugu State in the election by the 3 Respondent was affirmed by the trial tribunal in the judgment delivered on the 21″ September, 2023.
The Appellants brought the appeal in this court vide two (2) separate Notices of Appeal both dated the 21%, but filed on the 22″ November, 2023 at the Lagos and Enugu Divisions of the court below. At paragraph 2.8 on page 3 of the Appellants’ Brief filed on the 4″ December, 2023, the Notice of
Appeal filed at the Lagos Division is relied on for the purpose of prosecuting the appeal while the Notice of Appeal filed at the Enugu Division, was withdrawn at the hearing of the appeal and it is struck out accordingly.
From the thirteen (13) grounds contained on the extent Notice of Appeal, which appears at pages 3116 – 3139 of Vol. III of the Record of Appeal, four
(4) issues are said to be “necessary” for determination in Appellants’ Brief,
thus: –
“I. Was the lower Court right in affirming the trial Tribunal’s decision in expunging from its record and refusing to assess the evidence of PWI, PW2, PW3, PW3, PW6 and PW36 together with all the Exhibits they tendered? /Grounds 2, 3 and 4 of the Notice of Appeal).
1. 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 18″ March, 2023? /Ground 5 of the Notice of Appeal).
2. 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 2″d and 3′ Respondents and when it discountenance the ‘Appellants’ Reply Briefs? [Grounds 1 . and 11 of the Notice of Appeal).”
These issues are adopted at paragraph 6 on page 3 of the 1″ Respondents’ Brief filed on the 9″ December, 2023 while four (4) issues are also formulated for determination in the 2″‘ Respondent’s Brief filed on the 11″h December, 2023 in the following terms:-
“i. Whether the court below did not correctly overrule the appellants’ objection to the validity of the 2″‘ respondent’s brief? (Ground 1 of the Notice of Appeal).
ії. 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 18h March 2023?
(Grounds 2, 3, 4, and 5 of the Notice of Appeal.
iti. 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).
iv. Having regard to settled law, whether the lower Court did not righily strike out the appellants’ reply brief and. dismiss their appeal? (Grounds 11 and 12 of the Notice of Appeal.”
For the 3nd Respondent, it “contends that the issues which are called for the determination of the Court of Appeal (sic)”, at paragraph 3.00 on page 2 of the 3″” Respondent’s Brief filed on the 8′” December, 2023, are as follows:-
“1.Whether the Court of Appeal was wrong and occasioned a miscarriage of justice, when it dismissed the Appellants’ objection
HON. JUSTICE MOHAMMED LAWAL GARBA, ISC
pg. 4
to the respective Briefs of Argument of the 2nd and 3 • Respondents, and discountenanced the Appellants’ Reply Brief on the premise that it was a rehash of the arguments canvased in the Appellants’ main Brief. Grounds 1 and 11.
1. 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 PWI, PW2, PW3 and PW30 being subpoened 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 (S) of the First Schedule to the electoral Act, 2022. Grounds 2 and 3.
2. Whether the Court of Appeal was correct to hold that the Appellants failed to prove that the 2″d Respondent was not qualified to contest election for the office of Governor of Enugu State by reason of presentation a forged National Youth Service Certificate (NYSC) to the !” Respondent. Grounds 4 and 5.
3. Whether the Court of Appeal was correct to hold that the evidence of the Appellants’ witnesses lacked probative value and that Appellants’ witnesses who testified as agents did not comply with the provisions of Section 43(1) of the Electoral Act, 2022 and the /” Respondent’s Regulations and thereby failed to prove their case.
Grounds 6, 7, 8, 9, 10 and 12.”
The Appellants filed Appellants’ Reply briefs to the 3 Respondents’ Briefs as
follows.
1. Reply to 1″‘ Respondent’s Brief – filed on 14/12/2023,
2. Reply to 2″‘ Respondent’s Brief – filed on 13/12/2023, and
3. Reply to the 3″‘ Respondent’s Brief – filed on 11/12/2023.
For representing the specific complaints by the Appellants against the
decision by the court below as contained in the grounds of the appeal, I intend to use and consider the issues as couched
and set out in the
Appellants’ Brief for the determination of the appeal.
Issue 1,
“1. Whether the Court of Appeal was wrong and occasioned a miscarriage of justice, when it dismissed the Appellants’ objection to the respective
Briefs of Argument of the 2″d and 3rd
Respondents, and discountenanced the Appellants’ Reply Brief on the premise that it was a rehash of the arguments canvased in the Appellants’ main Brief. Grounds 1 and 11.
Appellants’
Submissions:-
It is submitted that the court below erred in Law to have affirmed the decision of the trial tribunal expunging and refusing to assess the pieces of
evidence adduced by the PW1, PW2, PW3, PW26 and PW30 called by the Appellants along with the documents tendered through them on the ground that their statements on oath were not filed within the time prescribed for the
filing of the petition, relying on, inter alia, Oke v. Mimiko (2013 LPELR – 20645 (SC) as well as Section 285 (5) of the Constitution and paragraphs
4(5), (6) and 14(2) of the 1* Schedule to the Electoral Act, 2022.
It is contended that the said witnesses were not under the control of the appellants before the presentation of the petition and could only be compelled SC/CV/1130/2023
by subpoena to give or make statements for the Appellants which could have been filed along with the petition.
According to learned SAN, it was impracticable to secure statements from an official witness other than by means of subpoena particularly when such a
witness is from an opposing party, such as the 1″ Respondent in this appeal.
He argues that the court below did not consider nor apply the authorities of
Dickson v. Sylva (2017) 8 NWLR (pt. 1567) 167 at 192 (SC), Uzodinma v.
Ihedioha (2020) 5 NWLR (pt. 1718) 529 at 556 and 568 (SC), Abubakar v.
INEC (2020) 12 NWLR (pt. 1737) at 110 (SC) and APGA v. Al-Makura
(2016) 5 NWLR (pt. 1505) 347 relied on by the Appellants wherein this Court held that statements by subpoened witnesses filed outside the time prescribed for the filing an election petition were permitted and admissible in evidence. In addition, the statement in the case of Onindiran v. Etteh (2011)
2 NWLR (pt. 1232)501 is commended to the court and it is contended that
since none of the Respondents applied to set aside the subpoena issued by the
trial tribunal for the witnesses, it was an order which binds both the parties and the tribunal, on authority of among others, Obi-Odu v. Duke (2006) 1
NWLR (pt. 961) 375 at 400 – 401 (CA) and Okeke v. Uwaechina (2022) 10
HON. JUSTICE MOHAMMED LAWAL GARBA, ISC NWLR (pt. 1837) 173 at 193 (SC). It is also the case of the Appellants, that on matters of evidence, the Evidence Act, 2011 is not only binding on the trial tribunal, but also superior to any other legislation in Nigeria by the provision in Section 2 thereof and authority of Anagbado v. Faruk (2019) 1
NWLR (pt. 1653(292 (SC) and Benjamin v. Kalio (2018) 15 NWLR (pt.
1614) 38 (SC), maintaining that the court below was wrong in relying on Oke
v. Mimiko (supra) and the decision in Peter G. Obi v. INEC as decided by it and this court since it did not decide or rule on issuance of subpoena on
official witnesses, but this Court merely held that that appeal shall abide the decision in Atiku Abubakar v. INEC.
According to learned SAN, it was impracticable to secure statements from an official witness other than by means of subpoena particularly when such a
witness is from an opposing party, such as the 1″ Respondent in this appeal.
He argues that the court below did not consider nor apply the authorities of
Dickson v. Sylva (2017) 8 NWLR (pt. 1567) 167 at 192 (SC), Uzodinma v.
Ihedioha (2020) 5 NWLR (pt. 1718) 529 at 556 and 568 (SC), Abubakar v.
INEC (2020) 12 NWLR (pt. 1737) at 110 (SC) and APGA v. Al-Makura
(2016) 5 NWLR (pt. 1505) 347 relied on by the Appellants wherein this Court held that statements by subpoened witnesses filed outside the time prescribed for the filing an election petition were permitted and admissible in evidence. In addition, the statement in the case of Onindiran v. Etteh (2011)
2 NWLR (pt. 1232)501 is commended to the court and it is contended that
since none of the Respondents applied to set aside the subpoena issued by the
trial tribunal for the witnesses, it was an order which binds both the parties and the tribunal, on authority of among others, Obi-Odu v. Duke (2006) 1
NWLR (pt. 961) 375 at 400 – 401 (CA) and Okeke v. Uwaechina (2022) 10
HON. JUSTICE MOHAMMED LAWAL GARBA, ISC NWLR (pt. 1837) 173 at 193 (SC). It is also the case of the Appellants, that on matters of evidence, the Evidence Act, 2011 is not only binding on the trial tribunal, but also superior to any other legislation in Nigeria by the provision in Section 2 thereof and authority of Anagbado v. Faruk (2019) 1
NWLR (pt. 1653(292 (SC) and Benjamin v. Kalio (2018) 15 NWLR (pt.
1614) 38 (SC), maintaining that the court below was wrong in relying on Oke
v. Mimiko (supra) and the decision in Peter G. Obi v. INEC as decided by it and this court since it did not decide or rule on issuance of subpoena on
official witnesses, but this Court merely held that that appeal shall abide the decision in Atiku Abubakar v. INEC. This Court is then invited to over-rule
the decision in Obi v. INEC (supra), in the alternative, pursuant to Order 6, Rule 5 (4) of the Supreme Court, Rules as well as Ardo v. Nyako (2014) to NWLR (pt. 1416) 591 at 627 (SC) and Veepee Ind. Ltd. v. Cocoa Ind. Ltd.
(2008) 13 NWLR (pt. 1105) 486 at 5223 (SC), for the following reasons: –
“(a) When the decision was reached per incuriam, vide: Uwemedimo vs. Mobil Producing (Nig.) UnItd. (2022) 2 NWLR (pt. 1813) 53 at
80-87 SC. In this case, the Supreme Court had apparently forgotten (here had acted per incuriam) its previous decisions which permitted evidence of witnesses subpoened even after the 21 days stipulated in the applicable law, which include Sylva vs.
INEC, supra; Uzodinma vs. Thedicha, supra, Abubakar vs. INEC, supra; APGA vs. Al Makuta, supra. It also apparently forgot that it had earlier held in Sylva vs. INEC, supra that a subpoena is a pg. 8 (b),(C),(d)
the command that must be obeyed by the person subpoened. incuriam” means for forget, vide: Tanko vs. State (2009) 4 NWLR (pt. 1131) 430 at 464 SC.
When such a decision “has led to results which are unjust or undesirable;” or
“is occasioning miscarriage of justice or perpetuating injustice,” vide: Oli vs. INEC (2023) 14 NWLR (pt.1903) 65 at 88-89 SC and Ndifor vs. C.O.P. (2022) 18 NWLR (pt.
1862) 421 at 449 SC. In this case, the Appellants, at the time of filing their Petition, were aware that the Supreme Court had previously permitted subpoenas to be filed and utilized, even after 21 days of the declaration of election results. It will, therefore, be
“unjust,” leading to a “miscarriage of justice,” if, all of a sudden, they are sent away from the seat of justice by the same Supreme Court.
When the previous decision was reached in such a wrong principle of law that persisting to follow it “would inflict hardship and injustice upon generations in the future…,
“vide: Rossek vs.1. C.B. (1993) 8 NWLR (pt. 312) 382 at 4461 SC; or when there is a need to “curb perpetration of injustice,” vide: B.M. Ltd. vs.
Woermann-Line (2009) 13 NWLR (pt. 1157) 149 at 186 SC; or when the previous decision was a vehicle of injustice,” vide:
Williams vs. Daily Times (1990) 1 NWLR (pt. 124) 1 at 37 SC. The injustice here is the fact that the Appellants had taken into account several decisions of the Supreme Court which allowed the evidence of subpoened witnesses to be utilised and duly assessed even after the mandatory 21 days; hence to shock them with a rejection of that accepted procedure will lead to grave injustice against them.
When, there is the need for the Supreme Court to terminate its continuous perpetuation in error, vide: INEC vs. M.C.D. (2023) 3
NWLR (pt. 1870) 97 at 145 B-C SC and Tanko vs. State (2009)
LPELR-3136 (SC). The error here is the failure to follow previous decisions on the subject matter.
When “a broad issue of public policy” is involved, vide: Okulate vs. Awonsaya (2000) 2 NWLR (pt. 646) 530 at 543 SC.
When “a broad issue of public policy” is involved, vide: Okulate vs. Awonsaya (2000) 2 NWLR (pt. 646) 530 at 543 SC.
In this case, the broad polity involved is the need to prevent civil servants working in places like NYSC, WAEC, INEC, etc, from being immersed in politics – by allowing politicians and their political parties to invite them just with the beckoning of a hand, without more, to volunteer statements for them in Election Petitions and SC/CV/1130/2023 for those invited to ‘comply.’ That would be the end of the Nigerian civil service! Another public policy issue here is that, if such civil servants refuse such invitation, cases involving high crimes like forgery, outlawed by provisions like section 182(1)() of the Constitution, will be thrown out; and soon.
The Nigerian Constitution will, then, be made a laughing stock! Your lordships righily described this Court as a “policy court” in the case of P.D.P. vs. INEC (2023) 13 NWLR (pf. 1900) 89 at 136 SC; hence we respectfully but firmly urge that your lordships uphold the public policy of overruling itself on this issue, as urged.”
In further argument, it is said that the provisions of Section 285 (5) of the Constitution and paragraph 4(5) of the 1″ schedule to the Electoral Act, 2022 do not apply to subpoened witnesses as their application would create absurdity and uncertainty in the administration of justice and reliance was placed on, inter alia, FRN v. Nganjiwa (2022) 17 NWLR (1860) 407 at 458 – 459 (SC), Saraki v. FRN (2016) 3 NWLR (pt. 1500) 531 at 632 (SC) and Ugba v. Suswan (2014) LPELR – 22882 (SC).
The court below is also said to have erred in law in affirming the failure by
the. trial tribunal to consider the evidence of the witnesses which was
expunged since its time to exercise the jurisdiction to do so. was limited and
its decision not final, thereby denying the appellate court an opportunity to consider all live issues in an appeal against the decision. Koko v. Koko
(2023) 13 N WLR (Pt. 1901) 249 at 289 (SC) is cited and the court is urged to, under section 22 of the Supreme Court Act, assess and evaluate the evidence of the said witnesses since the court below had the power, but failed to do so on the authority of Odedo v. PDP and Ors. (2015) LPELR – 24738 (SC).
The court is prayed to resolve the issue in favour of the Appellants.
1″ Respondent’s Submissions:-
After reference to the decisions by the two (2) lower courts to expunge evidence of the witnesses in question, it is contended that both courts are
right in law by dint of the combined provisions in section 285 (5) of the Constitution and paragraphs 4 (5) and 14(2) of the 1″ schedule to the Electoral Act, as well as the decisions by this court in Obi v. INEC (supra) and Kibiya v. Fammar (2019) LPELR – 49626 (SC) which decisions did infract the Evidence Act. The evidence of each of the witnesses in question
was considered and it is submitted that all of them were available and could
have been summoned by the Appellants before filing the petition or before the expiration of the time to do so and since the Appellants failed to utilize
the opportunity, they should not be allowed to use a subpoena to circumvent the time lines provided for in paragraph 4(5) of the Is Schedule to the SC/CV/1130/2023
Electoral Act and the decision in Omisore v. Aregbesola (2015) LPELR –
24803 (SC).
On the invitation by the Appellants for the court to over-rule its decision’ in Obi v. INEC, citing Odi v. Osafile (1985) LPELR – 2212 (SC), said to be locus classicus on the issue, it is submitted that the conditions for the departure have not been shown to exist or satisfied for the court to depart
from its previous decision. That the decision was not given per in curium-as
no arguments were forgotten by the court in the decision in relation to the carlier cases of Sylva v. INEC (supra), Abubakar v. INEC (supra) and APGA
v. Ap-Mekura (supra), but the arguments in Obi v. INEC were rejected by the court in affirming the decision of the court below in that case. The Learned SAN for the 1″ Respondent said the provisions in paragraphs 4(5) & 14 (2) of the 1« Schedule to the Electoral Act and Section 285(5) of the Constitution
are very clear, plain and unambiguous and to be given their ordinary and literal construction no matter the result, on the authority of PDP v. INEC
(1999) LPELR – 24856 (SC) and Nwobuke v. FRN (2021) LPELR – 56670
(SC). SC/CV/1130/2023
The invitation for the court to assess and evaluate the evidence of the
witnesses in question under Section 22 of the Supreme Court Act, on the authority of Ebebi v. Esemokumor (2022) 1 NWLR (pt. 1812) 462 at 485 – 488, Shetima v. Goni (2011) 18 NWLR (pt. 1279) 413, ANPP v. Goni (2012)
7 NWLR (pt. 1298) 147, Ezenwankwo v. APGA (2022) LPELR – 57884 (SC), Toyin v. PDP (2019) LPELR – 47533 (SC) and Dantiye v. APC (2021)
18 NWLR (pt. 1808) 381 (SC), it is argued, cannot be accepted since the court lacks the jurisdiction lost by the two (2) courts below to assess and evaluate the evidence with the expiration of the time lines for the trial and
appeal before them; respectively.
Lastly, it is the further contention of the Is Respondent that the evidence of PW 26, “star witness”, for the Appellants was both direct hearsay and contradictory which the trial tribunal was right to have discountenanced, on the authority of Kakih v. PDP (2014) 15 NWLR (pt. 1430) (no page provided, but it is page 374).
The court is urged to uphold the decision of the lower courts and in favour of the 1″ Respondent.
Respondent.
2″‘ Respondent’s Submissions:
The issue was argued under issue 2 of the 2″‘ Respondent where the two (2) lower courts are said to be right to have expunged the evidence of PW1, PW2 and PW3 called by the Appellants in proof of the allegation of forgery of the NYSC certificate by the 2″‘ Respondent on the ground that their statements on oath were filed outside the time permitted for the filing of the petition contrary to the provisions of paragraphs 4(5) and 14(2) of the 1″ Schedule to
•the Electoral Act and the binding authorities in the cases of Oke v. Mimiko (supra) and Obi v. INEC (supra). It is the casc of the 2″d Respondent that the witnesses were available to the Appellants and that the issue of the validity of
witness depositions filed outside the twenty one (21) days allowed for the filing of a petition did not arise in the cases of Dickson v. Sylva (supra), Uzodinma v. Ihedioha (supra), Abubakar v. INEC (supra) and APGA v. Al-Makura (supra) relied on by the Appellants. Learned Silk for the 2nd Respondent submits that the law is trite that with respect to subpoena, what
matters is whether the witnesses are compellable and not whether they are
official or unofficial witnesses, relying on Adegbite v. Amosu (2016) 15
NWLR (pt. 1536) 405 at 421 – 422 and then argues that the affirmation of the decision of the court below in Obi v. INEC that such depositions filed outside, the prescribed time are inadmissible is binding on all authorities and persons in Nigeria by virtue of Section 287 of the Constitution as the most recent
decision of this court on the issue. Osakue v. F.C.E., Asaba (2010) 10
NWLR (pt. 1201) 1 at 34, and CBN v. Okojie (2015) 14 NWLR (pt. 1479)
231 at 263, are cited in support of the submission.
On the invitation to the court by the Appellants to over-rule the decision in Obi v. INEC (supra), it is submitted that the Appellants have failed to demonstrate that the case falls into the situations stated and restated.
In decisions such as Ihim v. Maduagwu (2021) 5 NWLR (pt. 1770) 584 at 619, Idoniboye-Obi v. NNPC (2003) 2 NWLR (pt. 805) and Oli v. INEC (2023)
14 NWLR (PT. 1903) 65 at 88 – 89 to warrant acceptance of the Appellants’ invitation to over-rule or depart from its decision in Obi v. INEC.
Similar submissions as those made by the 1″ Respondent on the power of this Court to assess and evaluate the evidence of the witnesses expunged by, the
trial tribunal pursuant to the provisions of Section 22 of the Supreme Court
Act are also made and the court is urged to uphold same.
3″‘ Respondent’s Submissions: SC/CV/1130/2023
The issue is argued under 3 Respondent’s issue 2 and citing Marwa v.
Nyako (2012) LPELR – 7837 (SC) 36, Abubakar v. Nasamu (2012) LPELR
– 7826 (SC) among other cases, Section 285 (5) of the Constitution and paragraph 4(5) of the 1″ Schedule to the Electoral Act, it is submitted that the
court below is right to have affirmed the decision by the trial tribunal to
expunge the evidence of the witnesses whose statements on oath were filed
outside the timeline for the filing of an clection petition. It is then contended that the distinction sought to be drawn by the Appellants between official and subpoened witnesses is an invention and an unworthy aberration that has no place in Nigerian Jurisprudence and reliance was placed on Ibch v. State
(1997) LPELR – 1389 (SC). Similar arguments are made on the availability of the witnesses to the Appellants before the petition was filed as made by the 1″ and 2″d Respondents and it is maintained that by the authority of Oke v.
Mimiko (supra) and Obi v. INEC (supra) the two (2) lower courts are right to have expunged the evidence of the witnesses in question, leaving nothing to
assess or evaluate.
The court is urged to resolved the issue in favour of the 3″ Respondent.
In the Appellants’ Reply brief to the 3′ Respondent’s Brief, it is submitted that the facts in the case of Marwa v. Nyako (supra) and Abubakar v. Nasamu (supra) are different from the Appellants’ case as they have nothing to do
with subpoenas.
It is maintained by the Appellants that since more of the Respondents applied to set aside the subpoenas issued by the trial tribunal, they cannot argue against same now as the case of Saraki v. FRN (supra) and INEC v. Musa (supra) have no application because they did involve issuing of subpoenas in
election matters.
Other arguments in the Reply brief are further arguments of the appeal.
Kesolution:
My Lords, as a foundation, I wish to restate the now elementary position of the law that election matters are in a class of their own and different from
ordinary civil matters in the practice and procedure for adjudication by the
courts/tribunals.
In the known parlance, election matters are called “sui generis”, primarily because specific and special provisions are enacted by the legislature to
regulate and govern the procedure and practice to be used in the SC/CV/1130/2023
determination and settlement of disputes arising therefrom by the
courts/tribunals that are either specifically established or vested with the requisite jurisdiction to adjudicate over the disputes, under the constitution.
The peculiar and overriding feature in the constitutional and other statutory provisions on collection matters is the timeline mandatorily prescribed, stipulated and imposed for all procedural steps to be taken by all the parties in election disputes as well as the courts/tribunals in the determination of such disputes; from the beginning to the end.
Due to the mandatory nature of the constitutional and statutory provisions on
. the procedural steps to be followed and taken in election matters, the law has evolved that the slightest non-compliance with a procedural step in an election matter, which otherwise could either be cured or waived in ordinary
civil proceedings, could result in fatal consequences. See Buhari v. Obasanjo
(2005) 17 NWLR (pt. 850) 423, (2003) 14 NWLR (pt. 841) 446, ANPP v.
Resident Electoral Commissioner, Akwa Ibom State (2008) 8 NWLR (pt.
1090) 453, Magaji v. Balat (2004) 8 NWLR (pt. 876) 449, Nwankwo v.
Yar’ Adua (2010) 12 NWLR (pt. 1209) 518, Okechukwu v. Obiano (2020) 8
NWLR (pt. 1726) 248, Lokpobiri v. APC (2021) 3 NWLR (pt. 1764) 538.
Under this issue, the bone of contention between the Appellants on one hand and the Respondents. on the other hand, is whether the evidence of PW1, PW2, PW3, PW26 and PW30 called by the Appellants; as contained in their statements on oath which were admittedly, filed after the expiration of the time prescribed for the presentation of the Appellants’ petition before the trial tribunal, was valid and admissible in law for it to be considered, assessed and evaluated in the determination of the petition by the trial tribunal. The
tribunal deak with and resolved the issue in its judgment delivered on the 218
September, 2023, particularly at pages 2422 – 2425 of Vol. III of the Record of Appeal as follows:-
“The main contention of parties in this petition is as to whether or not witnesses on subpoena are mandated to upload their written statements on oath along with the petition. In other words, whether the failure to obtain and serve the written deposition of subpoened witnesses along with the petition amounts to failure to comply with paragraph 4(5) (b) of the I” Schedule to the Electoral Act, 2022.
It was submitted that compliance with paragraph 4(5) (b) is mandatory and that non-compliance with same renders such witness statements fundamentally incompetent and liable to be set aside. Cases of PDP v Okogbuo & Ors. (2019) LPELR-48989 (CA) pg. 11-28 paras D-B, Ojukwu v Yar’Adua (2009) 12 NWLR (pt. 1154) 50 at 142 paras R-G and Yaki v. Bagudu (2015) 18
NWLR (pt. 1491) 288 at 348 are cited and relied upon.
It was argued on the other hand that assuming the Federal High Court Rules apply in this case, the witnesses have already filed their witness statement on oat in compliance with the rules upon service on them of subpoena to appear before the Tribunal.
Reliance was placed on the case of Warisenibo Maclean Bethel Oranta v. INEC &
2 Ors., Petition No. EPT/RV/IR/02/23
delivered on 22/06/2023.
The provisions of paragraph 4(5) of the 1″ schedule to the Electoral Act, 2022 is as follows:-
(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)
(c)
Written statements on oath of the witnesses; and copies of list of all documents to be relied on at the hearing of the petition.”
The law is settled that the above provision makes it mandatory to file witness depositions along with the petition before such witness will be competent to testify before the Tribunal or court in election petitions. See OKE & ANOR. V. MIMIKO & ORS. (2013) LPELR
– 20645 (SC) at pg. 43-45 paras D-D; OGBA V. VINCLENT
(2015) LPELR – 40719 (CA) at pg 42-49 paras C; ARARUME & ANOR V. INEC & ANOR. (2019) LPELR – 48397 (CA) at pg. 28-
36. In peter Obi & Anor. v. INEC & ORS (supra) the court per Tsammani JSC said:
“The firm position of the Supreme Court as stated in OKE
v. МІМІКО (supra) and followed by this court in Ogba v.
Vincent (supra) is that by the combined provisions of section 285(5) of the 1999 Constitution, section 132 (7) of the
• Electoral Act, 2022 and paragraph 4(5) and (6) 14(2) of the 1″ schedule to the Electoral 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. 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 that 21 days limitation will account to a surreptitious amendment of the petition and a breach of paragraph 14 of the 1″ Schedule to the Electoral Act, 2022. This irrespective of whether the witnesses to be called are ordinary or expert witnesses and whether they are willing or subpoened witnesses. Since then, this has been the consistent position of the law followed by this court.”
In the instant petition, PWI, PW2, PW3 and PW30 were subpoened at the instance of the Petitioner while DW2 and DW3 were Subpoened at the instance of the 2″ and 3 Respondents respectively.
Hence all the witnesses under subpoena were
available to the parties at the time of filing the petition and replies thereto, it follows that the witness statements on oath filed after the time limited for doing so has elapsed are incompetent. Their testimonies as embodied in their respective witness statement and/or oral evidence, documents admitted in evidence as Exhibits are hereby struck out.”
This decision of the trial tribunal was affirmed by the court below in the decision appealed against in the following terms, at pages 3052 – 3054 of vol.
Ill of the Record of Appeal.
“The question is why was the evidence of these witnesses expunged? The answer is that they were expunged for noncompliance with the law.
Section 285(5) of Constitution of the Federal Republic of Nigeria 1999 (as amended) read:-
“An election petition shall be filed within 21 days after the date of the declaration of the result of the elections”
Paragraph 4(5) of the First Schedule to the Electoral Act, 2022, an election petition, which shall be filed within twenty one (21) days after the day of declaration of result, … “shall be accompanied by
(a) list of witnesses that the petitioner intends to call in proof of the petition (b) written statement on oath of the witnesses.”
Learned senior counsel for the Appellants must appreciate the facts that election matters by their nature are sui generis and time is of essence. Therefore strict compliance with the provisions of the Electoral Act is what will aid the Appellants. This, the
HON. JUSTICE MOHAMMED LA WAL GARBA, ISC
• pg. 21
Appellants have failed to do in this case. However, the issue has been put to rest by the decision of the Supreme Court in Oke Vs.
Mimiko (2013) LPELR – 20645 (SC) held thus:-
“the firm position of the Supreme Court and followed by this court in Ogba vs. Vincent (2015) LPELR – 40719 (CA) is that by the combined provisions of Section 285(5) of the 1999 Constitution, Section 132(7) of the Electoral Act, 2022 and paragraph 4(5) and
(6) AND 14(2) of the I” schedule to the Electoral Act, every written statement on oath of the witness which a party intends to call must be filed along with the petition within the time limited by subSection (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Section 132 (7) of the Electoral Act, 2022.
Once the time limited for filing of a petition was provided it cannot be added to or amended in any manner or under any guise. Any written statement on surreptitious amendment of the petition and breach of paragraph 14 of the First 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
subpoened witnesses. Since then this has been the consistent of the law followed by this Court.
Any written statement on oath of a witness filed outside that 21 days limitation will account to a surreptitious amendment of the petition and a breach of paragraph 14 of the 1″ Schedule to the Electoral Act, 2022. This irrespective of whether the witnesses to be called are ordinary or expert witnesses and whether they are willing or subpoened witnesses. Since then, this has been the consistent position of the law followed by this court.”
In the instant petition, PWI, PW2, PW3 and PW30 were subpoened at the instance of the Petitioner while DW2 and DW3 were Subpoened at the instance of the 2″ and 3 Respondents respectively.
Hence all the witnesses under subpoena were
available to the parties at the time of filing the petition and replies thereto, it follows that the witness statements on oath filed after the time limited for doing so has elapsed are incompetent. Their testimonies as embodied in their respective witness statement and/or oral evidence, documents admitted in evidence as Exhibits are hereby struck out.”
This decision of the trial tribunal was affirmed by the court below in the decision appealed against in the following terms, at pages 3052 – 3054 of vol.
Ill of the Record of Appeal.
“The question is why was the evidence of these witnesses expunged? The answer is that they were expunged for noncompliance with the law.
Section 285(5) of Constitution of the Federal Republic of Nigeria 1999 (as amended) read:-
“An election petition shall be filed within 21 days after the date of the declaration of the result of the elections”
Paragraph 4(5) of the First Schedule to the Electoral Act, 2022, an election petition, which shall be filed within twenty one (21) days after the day of declaration of result, … “shall be accompanied by
(a) list of witnesses that the petitioner intends to call in proof of the petition (b) written statement on oath of the witnesses.”
Learned senior counsel for the Appellants must appreciate the facts that election matters by their nature are sui generis and time is of essence. Therefore strict compliance with the provisions of the Electoral Act is what will aid the Appellants. This, the
HON. JUSTICE MOHAMMED LA WAL GARBA, ISC
• pg. 21
Appellants have failed to do in this case. However, the issue has been put to rest by the decision of the Supreme Court in Oke Vs.
Mimiko (2013) LPELR – 20645 (SC) held thus:-
“the firm position of the Supreme Court and followed by this court in Ogba vs. Vincent (2015) LPELR – 40719 (CA) is that by the combined provisions of Section 285(5) of the 1999 Constitution, Section 132(7) of the Electoral Act, 2022 and paragraph 4(5) and
(6) AND 14(2) of the I” schedule to the Electoral Act, every written statement on oath of the witness which a party intends to call must be filed along with the petition within the time limited by subSection (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Section 132 (7) of the Electoral Act, 2022.
Once the time limited for filing of a petition was provided it cannot be added to or amended in any manner or under any guise. Any written statement on surreptitious amendment of the petition and breach of paragraph 14 of the First 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
subpoened witnesses. Since then this has been the consistent of the law followed by this Court.
See the recent decision of this court in Peter G. Obi & Onor vs.
INEC & Ors. CA/PEPC/03/2023 which was affirmed by the Supreme Court and by the doctrine of stare decisis, we are all bound by the decision of the Supreme Court being the highest court of the land.
The tribunal was therefore right in expunging the statements of
PWI, PW2, PW3 and PW30 and I so hold in line with the above decisions of this Court and the Supreme Court and the Provisions of the Constitution and the Electoral Act I, it is trite that expunged or rejected evidence has no evidential value. See Agbola vs. State
(2011) LPELR -8948 (CA) and evidence PW26, it is elementary, hearsay evidence is inadmissible in law and the Tribunal was right in expunging same.
It is a misconception of law for the Appellants counsel to argue that having expunged the statements, the trial Tribunal should have proceeded to assess same. This is because, the statements that were expunged for their inadmissible, there is nothing left for the tribunal to assess on the said statements.”
As can be seen, it is beyond reasonable argument that the law on the validity, competence and admissibility of evidence of witnesses based on their written stalements on oath in election petition proceedings, which were filed outside or after the expiration of the time stipulated and limited for the presentation of an clection petition, has been firmly established by the pronouncements of this court in the cases cited and relied on by the two (2) lower courts in the above decisions. Conflicting decisions by the court below, earlier or later, on the issue are, by law, of no legal moment as they cannot stand in the way of the decisions of this court since that court is constitutionally bound by the
decisions of this court, as the final judicial authority in the country by dint of the provisions in Sections 235 and 287(1) of the Constitution. Sce Dingyadi
v. INEC (No.1) (2010) 180 (pt. 1224) 1 (SC), Ukachukwu v. NYSC (2006)
All FWLR (PT. 308) 1272, APGA v. Al-Makura (2016) 5 NWLR (pt. 1505)
347 (SC), CIL Risk & Asset Management Ltd. v. Ekiti State Government
(2020) 12 NWL (pt. 1738) 203 (SC), Stanbic IBTC Bank, Plo v. L.G.C. Ltd.
(2020) 2 NWLR (pt. 1707) 1 (SC), Degi-Eremienyo v. PDP (2021) 16
NWLR (pt. 1800) 387 (SC), Sani v. K. S. H. A. (2021) 6 NWLR 1773) 422 (SC). SC/CV/1130/2023
•
The decision by the court below in the Obi v. INEC case, which was affirmed by this court in the judgment delivered on the 26″ October, 2023 in the Obi v.
INEC Appeal No. SC/CV/937/23, on the issue of the validity, competence and admissibility of the evidence of subpoened witnesses in election petition proceedings which were filed outside and after the expiration of the time
prescribed under the Electoral Act for the presentation of an election petition, has put the position of the law beyond further reasonable and viable legal
arguments.
The law is that where this court delivers a decision that is at variance and
different from a previous or earlier decision/s on an. issue, the effect is that the subsequent decision is deemed to have over-ruled or departed from the
previous or earlier decision/s as stated by the court in Osude v. Azodo (2017)
15 NWLR (pt. 1588) 295 at 322 paragraphs. A – D.
Although the trial tribunal had referred to the decision of the court below on the issue in the extract of its judgment set out earlier, it is expedient to, again, call in the specific decision affirmed by this court in the Obi v. INEC judgment delivered on the 26″ October, 2023. This was the decision:-
“The firm position of the Supreme Court as stated in OKE v.
MIMIKO (supra) and followed by this court in Ogba v. Vincent (supra) is that by the combined provisions of section 285(5) of the
1999 Constitution, section 132 (7) of the Electoral Act, 2022 and paragraph 4(5) and (6) 14(2) of the I” schedule to the Electoral 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. 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 that 21 days limitation will account to a surreptitious amendment of the petition and a breach of paragraph 14 of the l” 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 subpoened witnesses. Since then, this has been the consistent position of the law followed by this court. “(Underline supplied)
One of the issues raised by the Appellants, considered and determined by the court in the Atiku Abubakar v. INEC judgment in Appeal NO. SC/CV/935/23 delivered on the same 26″ October, 2023 by the court and which the Obi v.
INEC appeal was ordered to abide by, was Issue Three (3) thus:-
“(3) Whether the lower court was not in error to have expunged the witnesses’ Statement on Oath of Appellants’ subpoened witnesses, namely, PWI2, PW13, PW14, PW15, PW16, PW17, PW18, PW21,
PW23, PW24, PW25, PW26 and PW27, and the exhibits tendered by them on the ground that the witnesses’ statement on oath were not filed along with the petition and that Order 3, Rule 2 and 3 of the Federal High Court (Civil Procedure) Rules, 2019 is not applicable in election matters.”
This issue was specifically determined on the merit by the court when it held, per Hon. Justice Okoro, JSC in the Lead Judgment, inter alia, 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 filing of written statement on oath of wilnesses in election petition proceedings is 21 days from the date of declaration of results.
As was pointed out by the 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 couret in Oke Vs. Momiko (No)
(2014) 1 NWLR (pt. 1388) 225.
In his contributory judgment, in the above case, Ogunbiyi, JSC (Rid) made the following decision.
“By paragraph 4(1) and (5) of the first schedule to the Electoral 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 a 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 1” Schedule to the Electoral Act, the Appellants by section 134(1) of the Act had been totally fore-close from any amendment with was in fact the hidden agenda promotion the application……
Further still and on a critical perusal of the application, relief 2 secs “leave to call additional witnesses, to wit
1.E.O”. It is pertinent to restate that at the close of pleadings, 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 as 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 !” 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, the court held that application 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 subpoened witnesses should be allowed to testify but as was argued by the learned senior counsel for the I” 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. “
The decision of this court on the issue is definite, precise, unequivocal and clear for easy understanding and comprehension even to a non-legal mind. It
was because no practical and useful purpose was to be served by the
repetition of the views and conclusion of the court on the same issue raised
by Appellants in the Obi v. INEC appeal against the same judgment by the court below, that the court ordered that the judgment in Obi v. INEC shall abide by the judgment in Atiku Abubakar v. INEC on all the identical issues canvassed by the Appellants in both appeals. In my contribution in support of the Lead Judgment, I had stated:-
“This is a sister Appeal to the Appeal No. SC/CV/935/2023:
Abubakar Atiku & Anor. v. I.N.E.C. & 2 Ors, both of which are from the decisions of the Court of Appeal; sitting as the Presidential Election Petition trial court, dismissing the separate Presidential election petitions filed by the Appellants on ground of failure to prove same as required by the law.
The seven (7) issues raised and canvassed by each of the two (2)
Appellants in their respective briefs of argument, are not only identical, but materially, substantially and essentially the same.
All the issues argued in this appeal have been comprehensively, totally, effectively and conclusively considered and resolved in the judgment in the Appeal No. SC/CV/935/2023, such that the repetition of the reasonings and conclusions of the court on the said issues in this appeal will serve no practical and useful purpose. It was on that ground and for that reason that at the hearing of the two (2) appeals, the court stated that the decision in the Appeal No. SC/CV/935/2023 shall bind and this appeal shall abide by the said decision.
I have read the Lead Judgment written by my Learned Brother, Hon. Justice J. I. Okoro, ISC, in this appeal and agree, entirely, that the issues 1, 2, 3, 5, 6 and 7 in this appeal, like in the sister Appeal, are devoid of merit and resolved against the Appellant here, for all the reasons set out in that appeal.
On the issue four (4) of the appeal, it has been conclusively and decisively determined and pronounced upon with finality by the Court in the Judgment delivered on the 26″ of May, 2023 in Appeal No. SC/CV/501/2023; PDP v. INEC & 3 Ors., which is an extant and binding decision on the Appellants in this appeal. The issue cannot be relitigated before this court, whist the decision subsists. In fact, it is an abuse of the court process to bring an SC/CV/1130/2023
appeal on an issue that has been settled by the court – Nyame v.
FRN (2021) 6 NWLR (pt. 1772) 4 (SC).
In the above premises, the appeal stands unmeritorious and I join the Lead Judgment in dismissing same in all the terms set out therein.”
In the above circumstances, it is lame and idle to argue that the court • did not make a pronouncement on the issue of subpoened witnesses
whose statements on oath were not filed along with an election petition, but long after the expiration of the time limited for the presentation of
an clection petition.
“This is a sister Appeal to the Appeal No. SC/CV/935/2023:
Abubakar Atiku & Anor. v. I.N.E.C. & 2 Ors, both of which are from the decisions of the Court of Appeal; sitting as the Presidential Election Petition trial court, dismissing the separate Presidential election petitions filed by the Appellants on ground of failure to prove same as required by the law.
The seven (7) issues raised and canvassed by each of the two (2)
Appellants in their respective briefs of argument, are not only identical, but materially, substantially and essentially the same.
All the issues argued in this appeal have been comprehensively, totally, effectively and conclusively considered and resolved in the judgment in the Appeal No. SC/CV/935/2023, such that the repetition of the reasonings and conclusions of the court on the said issues in this appeal will serve no practical and useful purpose. It was on that ground and for that reason that at the hearing of the two (2) appeals, the court stated that the decision in the Appeal No. SC/CV/935/2023 shall bind and this appeal shall abide by the said decision.
I have read the Lead Judgment written by my Learned Brother, Hon. Justice J. I. Okoro, ISC, in this appeal and agree, entirely, that the issues 1, 2, 3, 5, 6 and 7 in this appeal, like in the sister Appeal, are devoid of merit and resolved against the Appellant here, for all the reasons set out in that appeal.
On the issue four (4) of the appeal, it has been conclusively and decisively determined and pronounced upon with finality by the Court in the Judgment delivered on the 26″ of May, 2023 in Appeal No. SC/CV/501/2023; PDP v. INEC & 3 Ors., which is an extant and binding decision on the Appellants in this appeal. The issue cannot be relitigated before this court, whist the decision subsists. In fact, it is an abuse of the court process to bring an SC/CV/1130/2023
appeal on an issue that has been settled by the court – Nyame v.
FRN (2021) 6 NWLR (pt. 1772) 4 (SC).
In the above premises, the appeal stands unmeritorious and I join the Lead Judgment in dismissing same in all the terms set out therein.”
In the above circumstances, it is lame and idle to argue that the court • did not make a pronouncement on the issue of subpoened witnesses
whose statements on oath were not filed along with an election petition, but long after the expiration of the time limited for the presentation of
an clection petition.
With respect, the term “OFFICIAL WITNESSES” is subsumed in the term
“subpoened witnesses” which connotes every competent and compellable witness or witnesses, regardless of their nomenclature,
ordered or
commanded to appear before a court or tribunal in exercise of its judicial
authority to require and compel the attendance of all persons required to either produce evidence (documents, e.t.c), testify or otherwise give evidence in judicial proceedings.
In fact, the provisions of paragraph 4 of the 1» schedule to the Electoral Act, 2022, dealing with the contents of election petition, in sub-paragraph (5), (6)
and (7) provide that:- “(5) (i)
The election petition shall be accompanied by — (a)
a list of the witnesses that the petitioner intends to call in proof of the petition;
(b)
written statements an oath of the witnesses; and copies or list of every document to be relied on at the hearing of the pefition.
6)
A petition which fails to comply with subparagraph (5) shall not be accepted for filing by the secretary.
An election petition, which does not comply with subparagraph (1) or any provision of that subparagraph is defective and may be struck at by the tribunal or court.”
The community requirements in these mandatory prescriptions are that at the time of presentation/filing of an election petition before an election petition tribunal or court, as the case may be, the petition must (by the deliberate use of the word “shall”) be accompanied, brought or filed along with the following:-
(i) A list of the witnesses to be called in proof of the petition;
ii) Written. statements on oath, of the said witnesses on the list of
witnesses, and
iii) Copies or list of every document to be tendered and relied on at the
hearing of the petition.
Tijjani Abubakar
JUSTICE, SUPREME COURT
APPEARANCES:
S. T. Hon, SAN, with Dr. V. J. O. Azinge, SAN, Chief A. C.
Ejesieme, SAN, E. Fatogun, SAN and Mrs. R. Chris Garube, Esq., for the appellants.
Chief W. Olanipekun, SAN, with D. D. Dodo, SAN, I. A. J.
Offiah, SAN, B. Olanipekun, SAN and B. Nwosu, Esq., for the first respondent.
Abdul Mohammed, SAN, with Salisu Musa, SAN, R. Idris, Esq., O. F. Amedu, Esq., and P. O. Amiukwu, Esq., for the second respondent.
Dr. O. Ikpeazu, San with A. Ali, SAN, T. Maduka, SAN, Dr.
O. Onyia, Esq., and J. Mba Esq., for the third respondent
