The issue of subpoened witness is not new to practising lawyers. The arguement for and against the need to frontload witness statement on oath of subpoenaed witnesses in election matter is old and dates far back to 2010 Electoral Act (if not even beyond).
Now, this issue had happened previously in many cases and the court of Appeals had contradictory judgements on this matter. For now there has been no express supreme Court decision on the matter to my knowledge.
Going through 4(5)(a)(b)(c) of the first schedule of the recent electoral Act 2022, it stipulates the time frame for filing of all witness statement on oaths and by so doing bars oral testimony.
Now, there are two most interesting court of appeal decisions:
1. ADVANCE NIGERIAN DEMOCRATIC PARTY V.INEC & 2ors (2020) unreported CA/A/ EPT/406/2020 delivered by the Abuja judicial division court of Appeal, delivered 17th July 2020 @pages 40-43 where paragraph 4(5) of the first schedule was also implemented that there is no difference between ordinary and subpoenaed witnesses and they must be frontloaded.
2. Bashiru &ors V. kurdula & ors (2019) LPELR 48473 where the Court held that: ” 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 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.”
Furthermore, the case of Ararume v INEC also held that: a witness statement of any intended witnesses must have been deposed to and filed within the time of filing of the petition
it is important to understand that:
1. these cases are all court of Appeal Judgements and not Supreme Court.
2. These cases distinguish, especially Ararume’s case, that so far the subpoened person is a witness of the petitioner then it must be frontloaded
exception: is only where such statement on oath that was filed out of time was filed pursuant to the leave of the court.
The germain question is:
Can Labour Party’s subpoened witnesses be said to be adverse witnesses who could not have agreed or allowed his/her statement on oath to be filed by Obi’s lawyers on the ground that it will be adverse to his own. interest e.g if Obi’s lawyers were to subpoene the INEC chairman – it will be unheld if INEC Chairman had agreed to a witness statement that will be filed against his interest or that of INEC in the election petition.
if yes, then it can canvassed inline with the case of Bashiru &ors V. kurdula & ors that 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.
The logic is they could have filed the subpoena ahead, since the witnesses are Peter Obi and Labour Party’s witnesses, then frontload their witness statements. The witnesses are labour party’s witnesses and if at all there was an adverse interest on the part of labour party it is for labour party to show it.
Yet, to my mind for instance, Peter Obi subpoenaed a software engineer and 2 persons from channels tv; can these people be said to have adverse interest in the matter to the extent that they will not want to swear to an adverse statement in oath against their interest? or was Peter Obi’s lawyers able to show that the subpoenaed witnesses are adverse witnesses for the purpose of failure to frontload their statement on oath within time?
Given that this issue hasn’t been exactly tested at the Supreme Court, let’s see what the supreme Court decides.
