Election Petition: Requirement of Frontloading of Statements on Oath of Subpoenaed Witnesses 

In the Supreme Court of Nigeria

Holden at Abuja

On Friday, the 19th day of January, 2024

Before Their Lordships

Kudirat Motonmori Olatokunbo Kekere-Ekun

Uwani Musa Abba Aji

Mohammed Lawal Garba

Ibrahim Mohammed Musa Saulawa

Tijjani Abubakar

Justices, Supreme Court

SC/CV/1213/2023

Between

1. EMMANUEL DAVID OMBUGADU

2. PEOPLES DEMOCRATIC PARTY (PDP)                                                  APPELLANT

                                                                        And

1. SULE AUDU ALHAJI

2. INDEPENDENT NATIONAL ELECTORAL                                               RESPONDENTS

    COMMISSION (INEC)

3. ALL PROGRESSIVES CONGRESS (APC)

(Lead Judgement delivered by Honourable Kudirat Motonmori Olatokunbo Kekere-Ekun, JSC)

Facts

The 1st Appellant and the 1st Respondent were among the candidates who contested the Governorship Election of Nasarawa State conducted by the 2nd Respondent on 18th March 2023. At the conclusion of the election, the 1st Respondent was returned as the winner and consequently, sworn in as the Governor of Nasarawa State.

The Appellants were dissatisfied with election result and they filed a petition before the Governorship Election Tribunal holden at Lafia on the ground that the 1st Respondent was not duly elected by a majority of lawful votes cast.

The 1st Respondent filed its answer and also filed an application challenging the jurisdiction of the Tribunal to entertain the petition.

At the conclusion of the trial, the Tribunal in a majority judgement found in favour of the Appellants. It found the allegation of over-voting, to have been proved. It deducted the votes accredited to parties in the units where there were complaints of over-voting, and included the scores at the polling units that were alleged to have been excluded in the collation of results by the 3rd Respondent. The Tribunal therefore, nullified the return of the 1st Respondent as winner of the said election, on the ground that he was not elected by the majority of lawful votes cast and declared the Appellant as the winner of the election.

Dissatisfied, the Respondents appealed to the Court of Appeal. In a unanimous judgement, the Court of Appeal found that the Appellants failed to prove over-voting in the polling units complained about, and the trial Tribunal was wrong to have re-computed the votes the way it did in arriving that the 1st Appellant won the majority of the lawful votes. The Court of Appeal also expunged the evidence of certain witnesses subpoenaed by the Appellants at the Tribunal along with the exhibits they produced before the Tribunal, on the ground that the Appellants failed to frontload the said subpoenaed witnesses’ statements on oath. The Court of Appeal allowed the Respondents’ appeal, set aside the judgement of the Tribunal and affirmed the return of the 1st Respondent as the duly elected Governor of Nasarawa State.

Aggrieved, the Appellants filed an appeal to the Supreme Court.

Issues for Determination

The Apex Court considered the following issues raised for determination by the Appellant:

1. Whether the Court of Appeal was right when it held that the trial Tribunal dismissed the objections of the 1st Respondent before it without determining same, and proceeded to nullify the entire judgement of the trial Tribunal on that basis.

2. Whether, owing to the peculiar facts and circumstances of this case, the court below rightly struck out and expunged the evidence of the subpoenaed witnesses and the documents produced through them, for failure to frontload their witness statements on oath.

3. Whether the court below was right when it held that the Appellants failed to prove over-voting in the four polling units, which led to the setting aside of the trial Tribunal’s decision.

Arguments

On the 1st issue, the Appellants’ counsel submitted that the Tribunal was right not to have entertained the 1st Respondent’s objection that would have required a consideration of the evidence having regard to the facts pleaded. He argued that being an election matter with significant public interest, the Tribunal has a duty to eschew technicalities and decide the rights and liabilities of the parties based on the facts pleaded and the evidence in order to do substantial justice and uphold the mandate of the electorate. Counsel posited that in fact, one of the issues raised by the 1st Respondent’s objection was the same as the issue of jurisdiction to grant the reliefs sought by the Appellants, identified by the Tribunal for determination.  Counsel contended that no miscarriage of justice was shown to have occurred as a result of the Tribunal’s failure to determine the objection.

In response, the 1st Respondent’s counsel argued that that it is mandatory for a court to hear and determine any application before it at the appropriate time. Counsel relied on Section 285(8) of the 1999 Constitution and OYETOLA v INEC (2023) 11 NWLR (PT. 1894) 125. He argued that the grounds in the objection and the issue 1 for determination of the Petition were not the same, and the Tribunal’s failure to determine the issues raised in the objection constituted a breach of the 1st Respondent’s right of fair hearing and occasioned a miscarriage of justice. Respective counsel for the 2nd and 3rd Respondents made similar submissions as the 1st Respondent.

On the 2nd issue, the Appellants’ counsel submitted that there is a clear dichotomy between ordinary witnesses within the control of the petitioner whose statements must be frontloaded and subpoenaed witnesses summoned by the court/Tribunal, who, in the eyes of the law are witnesses of the court or Tribunal. He argued that subpoenaed witnesses are not ordinary witnesses within the purview of paragraph 4(5) of the First Schedule to the Electoral Act, 2022 but official witnesses of the court who can only be brought to court by a court order, therefore, the subpoenaed witnesses are official witnesses not within the Appellants’ control and it would not have been possible to frontload their witnesses statements within 21 days of the filing of the petition.

Responding, counsel for the 1st Respondent argued that by the combined provisions of Section 285(5) of the Constitution, paragraphs 4(5) (b) and 41(3) of the First Schedule to the Electoral Act 2022, the witness statement on oath of every witness to be called at the hearing, whether subpoenaed or not, must accompany the petition and must be filed within 21 days of the declaration of the result.

On the 3rd issue, the Appellants’ counsel argued that the Court of Appeal erred when it held that the Appellants failed to demonstrate the Bimodal Voters Accreditation System (BVAS) machines before the Tribunal to prove that there was over-voting when Section 84(b) of the Evidence Amendment Act, 2023 had obviated the need to demonstrate the BVAS machines in open court. He argued that the Appellants had tendered Certified True Copies of the record of accreditation as obtained from the BVAS machines and screenshots of the machines duly certified by INEC which ex-facie revealed the number of accredited voters, and there was therefore, no need for the Appellants to demonstrate the content of the BVAS machines to the Tribunal. He relied on OYETOLA v INEC & ORS. (2023) 11 NWLR (PT.1894) 125 @ 168; 170 & 175.

Conversely, 1st Respondent’s counsel argued that once the Court upholds the expunction of the evidence of the subpoenaed witnesses, which includes the evidence of PW7 who tendered the BVAS machines, the entire case of over-voting would fail. Counsel argued that that the tendering of BVAS machines is indispensable and the decision of the Supreme Court in OYETOLA v INEC was that any record of an examination of the BVAS machine can only be supplemental to it and not an alternative.

Court’s Judgement and Rationale

Resolving the 1st issue, the Apex Court held that based on the principle of fair hearing which demands that every party to a cause is entitled to a fair hearing before a decision is given affecting his interest, it is the duty of the court to consider and determine the merit of any application brought before it, notwithstanding the perceived strength or weakness thereof. The Court referred to its decision in ODEDO v PDP & ORS. (2015) LPELR – 24738 (SC) @ 36- 37 D – A.

The Court held that the hearing and determination of an objection to the jurisdiction of the court is crucial to the assumption of jurisdiction by that court, and where the issue is raised, it must be determined before the court takes further steps in the proceedings because, if the court lacks jurisdiction, every step taken in the proceedings, no matter how well conducted or how well written the judgement may be, would amount to a nullity.

The Court held that the 1st Respondent’s preliminary objection which raised several grounds in challenging the jurisdiction of the Tribunal to entertain the Appellants petition, had been identified by the Tribunal as one of the applications in respect of which it deferred ruling till the delivery of the judgement as allowed under Section 285(8) of the 1999 Constitution. However, in its judgement, the Tribunal merely made sweeping observations on the nature of the application without substantiating the same by reference to any particular ground of the application and determining the objection on the merits, and then proceeded to dismiss the application. The Tribunal thus, breached the 1st Respondent’s right to fair hearing, when it failed to effectively determine the objection on its merit.

On the 2nd issue, the Court held that by the clear wordings of Section 285(5) of the 1999 Constitution which stipulates the time within which a petition shall be filed, and the First Schedule of the Electoral Act which makes provision for the manner in which a petition should be presented and the documents that should accompany it, particularly Paragraph 41(3) thereto which mandates that the statements on oath of all witnesses must be duly frontloaded; there is no distinction given as to the type of witness whose statement on oath should accompany the petition. The Apex Court, relying on its decision in OKE v MIMIKO (NO. 1) (2024) 1 NWLR (PT. 1388) 225, held that there is no distinction between ordinary witnesses and subpoenaed witnesses in respect of the requirement for frontloading of the witnesses statements on oath of all categories of witnesses the parties intend to call at trial, and whether the witnesses a party intends to call are willing or subpoenaed witnesses, ordinary or expert witnesses, their witness depositions must be filed along with the petition within the stipulated time, and neither of the parties shall be allowed to lead evidence, oral or documentary unless it is pleaded, listed and frontloaded. The Supreme Court thus, found that the Court of Appeal rightly struck out and expunged the evidence of the subpoenaed witnesses and the exhibits and documents produced through them for failure to frontload their witness statements on oath.

On the 3rd issue, the Court relied on its decision in OYETOLA v. INEC & ORS. (2023) 11 NWLR (PT. 1894) 125 that the documents required to prove over-voting are the voters register, the BVAS machines and the Form EC8A. The Court further held that the record of the examination of the BVAS may be tendered alongside the BVAS machines but not as an alternative thereto.  The Supreme Court held that the Court of Appeal, having expunged the evidence of the subpoenaed witnesses and the exhibits tendered through them which included the BVAS machines tendered through PW7 and which had in fact been dumped on the Tribunal without being demonstrated in any form, the net effect was that the Appellants failed to prove over-voting and there was no basis for the Tribunal to have re-calculated the votes and alter the return of the 1st Respondent as the Governor of Nassarawa State.

Appeal Dismissed.

Representation

Kanu Godwin Agabi, SAN and others for the Appellants.

Chief Wole Olanipekun, SAN and others for the 1st Respondent.

Dr. Onyechi Ikpeazu, SAN and others for the 2nd Respondent.

Chief Akin Olujimi, SAN, and others for the 3rd Respondent.

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)(An affiliate of Babalakin & Co.)