There Is A Need For The Supreme Court To Revisit Its Decisions On Subpoenaed Witnesses By J. S. Okutepa SAN
There is no dispute that the Supreme Court of Nigeria is the final court of the land. Its decisions are binding and have force of law. All authorities and courts below it must abide by and respect its decisions. Anyone not happy can criticize it and hope that one day the Supreme Court will see reasons and depart from those decisions.
No doubt also that the Supreme Court is a court of law and court of policy. As a policy court, its decisions must not be rendered to encourage political rascality or interfere with justice and to put roadblocks to attainment of justice. The Supreme court is not infallible. It is just infallible because it is the final court. That is why it is acknowledged even by the Supreme Court itself that it can make mistakes and its mistakes can cause incalculable damages in the society.
It is submitted that mistakes of the Supreme Court can cause damages to attainment of justice. It can block justice also. It is on the basis of the foregoing that I think that it is time for the Supreme Court to take a second look at its decisions to the effect that in election Petition cases, written statements of subpoenaed witnesses must be filed along with the Petitions within 21 days allowed by the constitution for petitioners to file petitions.
In making this appeal I find the recent decision of the Court of Appeal very useful and as a basis to call the attention of the Supreme Court to the need to take a second look at its decisions on subpoenaed witnesses in election petition cases. The view of the Court of Appeal was well articulated in Umar & Anor v Sokoto & Ors (2023) LPELR 61356 CA, where his lordship Ita Mbaba JCA who presided in the panel that heard the appeal made profound erudite statements that resonate with justice and my own understanding of justice.
Because of the importance attached to his lordship’s view, permit me to quote him in extenso. This is what the erudite jurist said:
“The decision of the Tribunal was predicated on the evidence that the PW29, PW30 and PW31, being subpoenaed witnesses, did not have frontloaded statements on oaths filed with the Petition within 21 days, pursuant to Paragraph 4(5) of the First Schedule to the Electoral Act; and that there was no dichotomy between an ordinary witness and a subpoenaed witness, with regards to the need to frontload evidence within the required timeframe. This issue has become quite a topical and thorny one, in this dispensation of election cycles. Before this time, opinion appeared to favour the reasoning that demanding a subpoenaed witness to have frontloaded his statement on oath, with the Petition, before being qualified to give evidence, was to demand for an impossibility, especially where the subpoenaed witness belonged to the opposite camp and would not willingly volunteer his evidence on oath, for obvious reasons, and that within 21 days the Petitioner is mandated to file his Petition. Of course, it is a known fact that where the opposite camp is required to give evidence, or to produce vital document, needed to decide the case in favour of an opponent (the Petitioner), it is certain that the witness would gladly decline to do so, and would frustrate the Petitioner in the process to get justice. Thus, in my view, it amounts to asking for the impossible, to expect some subpoenaed witness to frontload their evidence with the election Petition.
And that would enthrone denial of fair hearing. See the case of Hamisu vs Abacha & Anor (2023) LPELR – 60476 CA, where it was held: “There are two types of subpoena and a witness may either be subpoenaed to testify, or to tender documents. A witness can also be subpoenaed to tender document and testify. PW1 is clear was subpoenaed to tender documents and he was cross-examined by the Appellant on the documents so tendered. There is nowhere that a witness subpoenaed is obligated to have a written statement on oath.” Per HASSAN, JCA (P. 31, paras. C-E) See also the case of Isah Bashir & Anor Vs Kurdula & Ors (2019) LPELR – 48473 CA, where my Lord Wambai, JCA extensively considered the issue as follows: It is my firm belief that the Electoral Act would not have contemplated a scenario where a petitioner would be expected, nay, required, to frontload the deposition of his adversary or that the adversary will willingly without any collusion or illegality, depose to a statement in favour of the petitioner. Since the Respondents are mandated by law to defend the petition. “It cannot be within the estimation of the law, in a normal situation, that a respondent will actively take deliberate steps or actions in support or proof of his opponent’s case. I believe strongly, that it cannot be the intendment of the 1st Schedule or the Practice Direction that a Respondent in an election petition will voluntarily make a deposition on Oath in favour of the petitioner for frontloading or to require a Respondent at any stage of the trial to voluntarily make any such deposition in favour of the petitioner.
This is more so that statutorily, a Respondent in an election petition is mandated to defend and not to support the petition. The law commands that which is reasonable and possible and not what is illogical or naturally impossible. Thus, the legal maxim “lex non cogit ad impossibilia” “the law does not command the impossible” applies here. It follows that the Respondent can only testify for a petitioner if compelled to do so by a subpoena. This is the import of the Appellant’s application for the issuance of “subpoena duces tecum ad testificandum” to compel, through the instrumentality of the subpoena, the subpoenaed witnesses to testify on their behalf, a function which the subpoena is intended to perform. It is to be noted that a subpoena is a Court process commanding any person to attend to Court and produce a document or evidence before it. In his explanation of a subpoena, Kekere-Ekun JCA (as he then was) in Omidiran vs. Patricia Etteh (supra) held thus to say: – “A subpoena is a formal document issued by the Court commanding a person required by a party to a suit to attend the Court at a given date, to give evidence on behalf of the party or bring with him and produce any specified documents required by the party as evidence or for both purposes.” Let me say here that the question thrown up by the scenario in this appeal is not novel. It is a scenario upon which this Court has spoken and it did so eloquently through Ogunbiyi, JCA (as he then was) in the case of Lasun vs. Awoyemi and Kekere-Ekun, JCA (as he then was) in the case of Omidiran vs. Patricia Etteh (Olubunmi) (supra). Ogunbiyi, JCA (as he then was) in his characteristic manner succinctly held inter alia: – “It cannot therefore be within the contemplation of the Practice Directions that the respondent should sign a witness statement or deposition on behalf of the Petitioner whose allegations of irregularities were against the said party. In other words, it is not within the expectation of the said Practice Directions that the Petitioner would frontload the statement of the Respondent.” In respect of such a Respondent subpoenaed by the Tribunal at the instance of the Tribunal, his lordship continued: “By mere fact of the subpoena having been issued, the witness is bound to be sworn on oath to testify and be cross-examined.
The authority in the case of Onyemelukwe v. Alberto [2001] All FWLR (Part 83) 2166 at 6184 is relevant…” See also the case of Muhammad Bashir Olatunji Ibrahim vs. Olatunji Adende Ogunleye & Ors (2010) LPELR-4556(CA) per Adumein, JCA. It follows that the provisions of Paragraph 4(5)(i)(b) and 41(3) of the 1st Schedule of the requirement of frontloading witnesses’ deposition on Oath only contemplates willing and voluntary witnesses who elect out of their volition to testify for the petitioner. They do not and cannot be contemplated or intended to apply to witnesses who are compelled by an order of Court through a subpoena duces tecum ad testificandum, to testify before the Tribunal, as it is not logical to expect such subpoenaed witnesses who are Respondents to the petition to prepare witness deposition to aid the case of his adversary. Any such expectation will go beyond the realm of any reasonable logic. Of course, the above position and concern appear to have been overthrown by the latest decisions of this Court and of Apex Court in the case of Obi Vs INEC & Ors: CA/PEPC/3/2023 delivered on 6/9/2023, (and affirmed by the Supreme Court) which the Tribunal had relied on to hold as follows: “In this case, the Court of Appeal reviewed the various decisions of the Court on this and concluded that the Supreme Court’s decision in the case of Oke V Mimiko (No.1) (2014) 1 NWLR (Pt.1388) 225 represents the position of the law. And that is in an election Petition a witness cannot testify if his deposition on oath was not frontloaded at the time of filing the Petition.
We therefore hold that PW29, PW30 and PW31 are not competent to testify and their testimonies before the Tribunal are expunged from the record. The objection to this effect is upheld and sustained (Page 3389 of the Records of Appeal). See also Atiku Abubakar & Anor Vs INEC & 2 Ors: SC/CV/935/2023, where the Apex Court held that by Section 285(5) of the Constitution of the FRN, 1999; Paragraphs 4(5) and 14(2) and 41(3) of the First Schedule to the Electoral Act, 2022, a witness must be listed in the Petition or Reply and his deposition frontloaded in the Petition or Reply before he can testify before a Tribunal in support of a party. Of course, the Apex Court had added that the requirement to frontload a witness statement (whether ordinary or subpoenaed witness) along with the Petition, filed within 21 days of declaration of winner of an election, is mandatory in election Petition. That is the settled position of the law, for now, notwithstanding the fears, concerns and worries discussed by my Lord, Wambai JCA in Bashir Vs Kurdula (supra), and discussed above. This Court is bound by that latest position of the law. And with that decision, the proverbial fear of “throwing away the baby with bath water”, appears to be permitted as the evidence and the documents (Exhibits) produced by the said witnesses PW29, PW30, and PW31 and the documents they produced stand rejected and expunged from the Records! Thus, despite the fact that the PW29 and PW30 were officers of the 4th Respondent, and the documents they produced would have been relevant to the trial, and presumed under Section 137 of the Electoral Act, 2022, the said documents have been defiled by means of the virus of the incompetent witnesses, who produced them, unfortunately!
The decision of the Apex Court had explained that the requirement of frontloading of subpoenaed witness statements on oath, applies to Elections Petition and may not apply to other civil causes, and that is because of the sui generis nature of Election matters. I respectfully opine that the phrase, sui generis, which also applies to Fundamental Right actions, sometimes appears to be employed, unfortunately, as a euphemism for injustice and enthronement of undue technicalities, as opposed to doing substantial justice. See Obisi Vs Chief of Naval Staff (2004) LPELR – 2184 (SC); Omoju Vs FRN (2008) LPELR – 2647 (SC), where it was held: “Courts of law have long moved away from the domain or terrain of doing technical justice to doing substantial justice. This is because technical justice, in reality, is not justice but a caricature of it. It is justice in inverted commas and not justice synonymous with the principles of equity and fair play. Caricatures are not the best presentations or representations. Substantial justice, which is actual and concrete justice, is justice personified. It is secreted in the elbows of cordial and fair jurisprudence with a human face and understanding. It is excellent to follow in our law. It pays to follow it as it brings invaluable dividends in any legal system anchored or predicated on the rule of law, the life blood of democracy. See generally State v. Gwato (1983) 1 SCNLR 142; Union Bank of Nigeria Plc v. Ikwem (2000) 3 NWLR (Pt. 648) 223; Sha v. Kwan (2000) 8 NWLR (Pt. 670) 685; Adebayo v. Okonkwo (2002) 8 NWLR (Pt. 768) 1; Asims (Nig.) Limited v. Lower Benue River Basin (2002) 8 NWLR (Pt. 769) 349; Afro-Continental (Nigeria) Ltd. v. Co-operative Association of Professionals Inc. (2003) 5 NWLR (Pt. 815) 303.” Per TOBI, JSC (Pp. 14-15, paras. D-B) Section 137 of the Electoral Act, 2022 says: “It shall not be necessary for a party who alleges non-compliance with the provisions of this Act for the conduct of elections to call oral evidence if originals or certified true copies manifestly disclose the non-compliance alleged.”
There is nothing more useful I can add to the views expressed by their lordships of both the Court of Appeal and the Supreme Court quoted hereof by his lordship Mbaba JCA as referred to above. Sui generis nature of election petition can not and must not make justice subservient to doing of substantial justice. No it should not and must not. I feel the Supreme Court has a duty and responsibility to set precedents in aid of justice and not in slaughtering it on the altar of technicalities. That in the words of Niki Tobi JSC as he then was will be caricature. See Afro-Continental (Nigeria) Ltd. vs. Co-operative Association of Professionals Inc (2003) 5 NWLR (Pt. 815) 303 at PP.14-15, paras.
