A STATEMENT ON OATH OF A WITNESS WHO REQUIRES SUBPOENA MAY NOT BE FILED AT THE COMMENCEMENT OF THE SUIT
PART 1
Chief Tom Anyafulude
1. Filing Of A Statement On Oath Of A Witness
According to Black’s Law Dictionary, 9th Edition, at 1563, Subpoena is defined as a writ or order commanding a person to appear before a court or other tribunal,subject to a penalty for failing to comply. In other words, a witness who requires Subpoena is one compelled by Court or Tribunal to attend Court and give evidence.
A compelled witness may have an informal relationship with the party who applied to secure their attendance to Court or Tribunal Court to testify.This discussion becomes imperative in view of the judgement of the Presidential Election Petition Tribunal (PEPT) delivered in the case of Mr Peter Obi on 6th September 2023.To the disappointment and embarrassment of a large number of Nigerians, the Presidential Election Petition Tribunal decided that the testimonies of 10 witnesses of Mr Peter Obi who were served with Subpoenas were incompetent because their statements on oath were not filed and served at the commencement of the suit.
Consequently, the Tribunal struck out these statements on oath of 10 out of 13 witnesses called by Mr Peter Obi. With all due respect, we consider this act as reckless which cannot be supported in law or equity. The Practice and Procedure of Presidential Election Petition Tribunal is regulated by procedure outlined in schedule 1 of the Electoral Act, 2022 and titled: Rules of Procedure for Election Petition.
In the said Rules, there is no express provision which deals with filing of statement on oath of a witness who has been served with subpoena.However,in the said Election Petition Rules,Civil Procedure is defined as Civil Procedure Rules of the Federal High Court for the time being in force. Similarly,Section 54 of Rules of Procedure for Election Petitions Provides:
_Subject to the express provision of this Act, the practice and procedure of the Tribunal or the Court in relation to an election petition shall be as nearly as possible, similar to the practice and procedure of the Federal High Court in the exercise of its civil jurisdiction, and the Civil Procedure Rules shall apply with such modifications as may be necessary to render them applicable having regard to the provisions of this Acts, as if the petitioner and respondent were respectively the plaintiff and the defendant in an ordinary Civil action.
Consequently, we shall resort to OR.3, R.3, Sub(2) of the Federal High Court Rules 2019 to demonstrate the error in their lordships’ decision.
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(2) Where a statement on oath of the witness requires a subpoena from the Court, It needs not be filed at the commencement of the suit
Thus,where any Practice Directions or Order is contrary to the above provision,it is void to the extent of its inconsistency
(2) Striking Out Of Pleadings
Many Nigerians watched helplessly as the Presidential Election Petition Tribunal arbitrarily struck out substantial portions of relevant averments in Mr Peter Obi’s Petition.The reason adduced was that these averments did not disclose material facts. With all due respect, this act was arbitrary and reckless and do not reflect the true position of our practice of law in Nigeria. Again, we shall anchor our analysis on OR.13, R.20 of the Federal High Court Rules(supra).
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20.(1) The Court may at any time on the application of either party, strike out any Pleading or any part of it, on the ground that it
(a) disclose no cause of action or no defence to the action, as the case may be, or
(b) is embarrassing, or scandalous, vexatious, an abuse of the process of the court; and
(2) the Court may
(a) either give leave to amend the Pleading or proceed to give judgment for the plaintiff or the defendant, as the case may be, or
(b) make other order, and upon such terms and conditions, as may seem just
From the above provision, a court can only strike out pleadings where they disclose no material facts which has resulted in the absence of a cause of action or where the pleadings is scandalous,vexatious and embrassing.There is always a difficulty in determining what constitutes material facts and evidence. In the Election Petition Tribunal Rules,there is a provision for “further particulars”
See Sec.5 of Rules of Procedure (Supra), which provides:
Evidence need not to be stated in Election Petition, but the Tribunal or Court may order such further particulars as may be necessary.
(a) to prevent surprise and unnecessary expenses;
(b) to ensure for and proper hearing in the same way as in a civil action in the Federal High Court; and
(c) on such term as to costs or otherwise as may be ordered by the Tribunal or Court. Therefore, the Tribunal has no power, expressly stated to strike out pleadings on ground of insufficient pleadings.
We have started earlier that there is a thin line between Material facts and Evidence. Where a petitioner states that there were malpractice in 18,000 polling units,they have stated facts of malpractice which can be elucidated in evidence of the nature and place of the malpractice.The practice law of the Federal High Court does not envisage pleadings to be struck out for insufficient facts except where there is no facts at all and this has resulted in absence of a cause of action. Imagine Mr Peter Obi stating the names of 18,000 polling units in a single document!! A party who feels surprise or taken unawares by pleadings has the burden to ask for further particulars,and where there is default in this regard, a court of justice and equity will impose the extreme sanction of striking out the pleadings. A party whose pleadings have been struck out is adversely prejudiced because his evidence in court will amount to nothing.
(3) A decision of a court or Tribunal without jurisdiction cannot act as estoppel per Rem Judicata.
Legal scholars and luminaries were astonished when the Presidential Election Petition Tribunal decided that Mr Peter Obi was estopped from raising the issue of electronic transmission of results, this having been determined by the Federal High Court. Does Sec.151 of the Constitution of Federal Republic Of Nigeria 1999 extend the jurisdiction of the Federal High Court to hear election matters?
Does the jurisdiction of the Federal High Court extend to declaratory actions on post election matters?
My noble lords, you cannot place something on nothing.The principles of Res Judicata do not extend to where decision of a court is a nullity. This is an issue of law which the Tribunal can raise Suo motu.
Watch out for further analysis in subsequent publications.
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