Details of Peter Obi/LP’s appeal at Supreme Court against PEPC judgment [pt. 3]
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On 9th September, 2023, Mr. Peter Gregory Obi and his Labour Party (LP) appealed against the judgment of the Presidential Election Petition Court (PEPC) at the Supreme Court containing 51 grounds of appeal.
The appeal was consequent upon the PEPC Judgment delivered on the 6th day of September 2023, which dismissed the Petition filed by Peter Obi/Labour Party “against the unlawful return and declaration of Bola Ahmed Tinubu as the winner of the presidential election held on 25th February, 2023.
The appeal is predicated on the Notice of Appeal filed in the Supreme Court of Nigeria holden at Abuja with file number SC/CV/937/2023 against petition number: CA/PEPC/03/2023 with the Independent National Electoral Commission (INEC), Senator Bola Ahmed Tinubu, Senator Shettima Kashim and the All Progressives Congress (APC) as Respondents.
In this segment tagged “Arguments on Issue 2” and “Arguments on Issue 3“, Peter Obi/Labour Party challenged the decision of the Tribunal to purge the appellants witnesses who testified under subpoenas.
They also insisted that the decision of the Court below was based on wrong principles and breached the Appellants’ right to fair hearing.
Peter Obi/Labour Party stated:
Arguments on Issue 2
At page 3476 – 3499, vol. 6 of the RoA, the Court below struck out Paragraph 21 of the Appellants’ Reply to the 2nd and 3rd Respondents’ Reply as well as paragraphs 16,17,18,19,20,22.23,24,25 and 27 of the Appellants’ Reply to 4th Respondent’s Reply for allegedly contravening paragraph 16(1) of the 1st Schedule to the Electoral Act, 2022. We submit, with due respect, that the Court was wrong to have done so. This is because, contrary to the decision of the Court, the Appellants’ Replies to the Respondents’ Replies to the Petition did not raise new issues, but were rather answers to new issues raised by the Respondents in their own Replies as allowed by Paragraph 16(I)(a) and (to) of the First Schedule. It is plain to see that paragraph 15 of the Appellants’ reply to paragraph 4(iii),(iv) and (v) of the 1st Respondents Reply did not introduce new facts but rather addressed the new issues pleaded by the 1st Respondent in paragraphs 4(iii), (iv) and (v) of the 1st Respondent’s Reply. The 1st Respondent, while responding to paragraphs 21-27 of the Petition in paragraph 17,18,19,20,21,22 and 24 of its reply averred to new facts which the Appellants’ responded to in Paragraph 16 of the Appellants Reply. Further, the averments in paragraphs 17,18,19,24,25,27,28,29,30,31,32,34,35,36 and 37 of the Appellants’ Reply to the 1st Respondent’s Reply to the Petition were neither a rehash of facts already covered in the Petition. They were also not new facts which amounted lo an amendment of the Petition but were answers to new facts contained in paragraphs 26, 27, 28, 29, 30, 31, 53, 54, 55(ii), 57, 58, 59, 60, 63, 64, 65, 66, 70, 71, 72,73, 74, 75, 76, 77, 78, 81, 82, 83, 85, 87, 88 and 90(i) to (xii) of the 1st Respondent’s Reply.
Further, paragraph 21 of the Appellants’ Reply to the Reply of the 2nd and 3rd Respondents which the Court below struck out, did not make any new allegation against the 1st Respondent but rather replied to the new facts pleaded by the 2nd and 3rd Respondents in paragraphs 59 and 60 of the 2nd and 3rd Respondents’ Reply to the Petition. A careful examination of paragraphs 16, 17. 18, 20, 22, 23, 24, 25 and 27 of the Appellants’ Reply to the 4th Respondent’s Reply did not contain new issues of facts but were answers to the new facts pleaded by the 4th Respondent in paragraphs 22(i)-(iii),23,24,25,26.27,28,300)- (vin and 31,34,35,37,40,48,49,62,77,82,85,86,93 and 94 of the 4th Respondent’s Reply to the Petition. In paragraphs 48,49,71,72,73,74,75,76,77,82,85,86,93,94 and 109 of the 4th Respondent’s Reply, the 4th Respondent raised a new issue that “there is no provision in the operative law governing the conduct of election in Nigeria that makes it mandatory for presiding officers to electronically transmit/transfer result from the polling unit directly to the 1st Respondent’s Collation System, nor is there any such provision making it mandatory,” amongst other strange pleadings with respect to use of BVAS to upload a scanned copy of the result of the election to the IReV in real time. Also, the 4th Respondent in paragraph 62 of the 4th Respondent’s Reply, introduced a fresh issue that the “Amazon Cloud Platform which provides the virtual servers to the Amazon Web Services (AWS) for the hosting/storing of the 1st Respondent’s data experienced slow/poor network connections and down time” which hindered the swift upload of the election results. Surely, the 1st Respondents’ Replies to the Petition introduced/contained new issues of fact. Accordingly, we urge your Lordships to hold that the Appellants’ Replies which merely responded/answered the new issues of fact raised in the Respondents’ Replies are competent and justified/permitted by the provisions of paragraph 160) of the First Schedule to the Electoral Act, 2022. See SYLVIA v. INEC (2018) IS NWLR (Pt. 1651) 352 SC. The decision striking out the above paragraphs of the Appellants’ Reply in the circumstance breached their right to fair hearing and occasioned a miscarriage. Accordingly, we humbly urge Your Lordships to uphold our arguments and resolve Issue No 2 in favour of the Appellants.
Arguments on issue 3
It is common ground that in proof of Appellants’ case, the Appellants called as witnesses PW3, Staff of Channels Television; PW4, a Professor of Mathematics, who produced and tendered expert report of the data analysis on the result of the 25th February, 2023 Presidential Election; PW5, Staff of Arise TV; PW6, Staff of PW7, a Cloud Engineer/Architect and Employee of Amazon Web Services; PW8, PW9, PWIO, PWI I and PW13 who were subpoenaed witnesses. The Witness Statement on Oath of PW4 clearly stated that he was engaged by the I” Appellant on 20°’ February, 2023, to carry out the data analysis of the election result state by state and determine whether the result to be announced by INEC at the conclusion of the election on 25/2/2023 would match the results on the INEC IReV portal. However, the Court below ruled on the Respondents’ objection challenging the competence of these expert witnesses and struck out their written depositions on oath on the ground that a written deposition filed by a witness not listed in the petition nor his deposition frontloaded cannot be countenanced by the court or the tribunal after the expiration of the time prescribed for filing the petition, relying on OKE v. MIMIKO (No. I) (2014) 1 NWLR (Pt. 1388) 225; ARARUME v. INEC (2019) LPELR — 48387 (CA) and OGBA v. VINCENT (2015) LPELR — 40719 (CA). With due respect, the above authorities heavily relied on by the Court below are totally inapplicable and irrelevant to the instant Petition. The facts in OKE v. MIMIKO (supra) had nothing to do with subpoenaing of witnesses in election petitions. The Court below overlooked that the focus in the decision of OGBA v. VINCENT (supra) was the injustice in allowing the piece of evidence not covered by the pleading to be presented to the court when the opposing party would not have the opportunity to react to it. In the instant case, the Court below overlooked the fact that these subpoenaed witnesses, whose evidence in their respective written statements was already covered by the pleadings and issues already joined in the Petition, within time, were duly listed in the List of Witnesses accompanying the Petition; and they did not bring in any new/fresh evidence. The Appellants submitted several decisions of the same Court which expressly and rightly permitted the subpoenaing of witnesses in election matters, including LASUN v. AWOYENI (2009) 16 NWLR (P1.1168) 513 CA; BASIIIR v. KURDULA (2019) LPELR — 48473 (CA). Indeed, the Court below failed to appreciate that in its recent unreported judgments in Appeal No: CA/PH/EP/SEN/06/2023 — APM v. INEC & ORS, delivered on 10th August 2023 and Appeal No: CA/KN/GOWKAN/05/2023 — ABBA YUSSUF v. APC, delivered on 24′” August 2023 which were cited and submitted to it, it [the Court below) reiterated its earlier position that it will be incongruous and preposterous to hold that the statement on oath must accompany a Petition.
Importantly, in at least two decisions of the Supreme Court — DICKSON v. SYLVA (2017) 8 NWLR (Pt. 1567) 167 at 192E-H and UZODINMA v. IHEDIOIIA (2020) LPELR-50260 (SC) — the Supreme Court held as admissible the evidence of witnesses on subpoena whose testimonies were not frontloaded or filed within 21 days and also (in UZODINMA’S case) even evaluated same and gave weight to it. These decisions which are binding on the Court of Appeal, were also commended to that Court. See ABUBAKAR VS. 1NEC (2020) 12 NWLR (Pt. 1737) 37 at 110E SC. Similarly, the only reason why the apex Court refused to assess the evidence of the subpoenaed witness from INEC in the case of APGA v. AL-MAKURA (2016)5 NWLR (Pt. 1505) at 347C-F SC was that the INEC witness (whose evidence was not frontloaded in the first place — for which see page 343A-13 of the Law Report) merely dumped the documents on the Tribunal. There was no question of it not being filed along with the Petition or within 21 days of the declaration of the Governorship Election result. Critically, too, the definition of a subpoena by the Supreme Court and the Court of Appeal in a good number of cases implies that it is the command of a court of law or tribunal that must be obeyed by the recipient. See DICKSON v. SYLVA (supra), which was also commended to the Court of Appeal. We also submit that the issuance of subpoenas is regulated by the Evidence Act, 2011, which applies to and binds all courts of law, including the Court below without distinction — whether or not such courts are election courts. Sec LASUN v. AWOYEMI (supra); DICKSON v. SYLVA (supra) at 192 SC, etc. We further submit that there is nothing in any of the constitutional and statutory provisions cited and relied upon by the Court below that suggests directly or indirectly that witnesses on subpoena must have their witness depositions frontloaded at the time of filing an Election Petition. We hereby commend to your lordships the reasoning in OMIDIRAN v. ETTER (2011) 2 NWLR (Pt. 1232) at 50ID CA, per Kekert-Ekun, JCA (as he then was), where it was held with respect to a subpoenaed witness thus: it is therefore not envisaged that the statement of such a witness would accompany the petition. No procedure has yet been prescribed for the manner in which a subpoenaed witness should testify in election petitions.” The election procedural rules considered in OMIDIRAN v. OTTEll (Supra) are in Pari material with the 1st schedule to the Electoral Act, 2022.
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Also, and this is very significant, none of the respondents applied to set aside the subpoenas issued by the court below; and being orders of the court, were still binding on ot, and all the parties. This was the decision of Agim, JCA (as he then was, now JSC) in the case of ILOKA v. EDOKWE (2016) LPELR-41027 (CA) at 20-21. We also submit that a subpoena is an order of court, which must be set aside for valid reasons. See OBI-ODU vs. DUKE (2006) 1 NWLR (Pt. 961) 375 at 400-401 CA. Consequently, the Court below without first setting aside its orders and without such orders being set aside on appeal, lacks the jurisdiction to nullify the evidence of the witnesses PW3, PW4, PW5, PW6, PW7, PW8, PW9, PW10, PWI I and PWI3. The law is well settled that a court order is binding on all parties and the court itself, until set aside. See OKEKE v. UWAECHINA (2022) 10 NWLR (Pt. 1837) 173 at 193A-B SC. The subpoenas having not been set aside, remained binding on the Court below. Indeed, in IBRAHIM v. OGUNLEYE (2012) 1 NWLR (Pt. 1282) 489 at 510 CA, it was held that having issued the subpoena, it was “illogical” for the Mal Tribunal to rely on the Practice Directions to maze the witness from being sworn to testify. In AMACHREE v. INEC (2019) LPELR-48677(CA) the Court held inter alia: “The tribunal was satisfied on the application of the Appellant that the subpoena be issued and having Issued same, the tribunal breached the Appellant’s right to fair hearing by not allowing, the witness on its subpoena to give sworn evidence on behalf of the Appellant. The tribunal did not issue the subpoena in error. It cannot approbate and reprobate.” (Underlining for emphasis)
We further submit that paragraph 4(5) of the In Schedule to the Electoral Act, 2022, which regulates the frontloading of written depositions of witnesses, does not include subpoenaed witnesses. Indeed, there is no provision in the entire Electoral Act and the 1″ Schedule thereof, which regulates the calling of subpoenaed witnesses. Hence, it is the provisions of the Evidence Act, 2011 (for which Sections 218 and 219 thereof) and the Federal High Court (Civil Procedure) Rules, 2019 (See paragraph 54 of the First Schedule to the Electoral Act, 2022, read together with Order 20 of those Rules) that are applicable. When it comes to matters of evidence, the Evidence Act, 2011 is not only binding on the Court of Appeal sitting as an Election Court [See section 256(1)1, the Act is also superior to any other legislation in Nigeria, vide: Section 2 of the Evidence Act, 2011; ANAGBADO v. FARUK (2019) I NWLR (Pt. 1653) 292 SC and BENJAMIN v. KALIO (2018) 15 NWLR (Pt. 1641) 38 SC At least two principles of interpretation of statutes are also relevant here: (a) The legislature does not intend to create injustice or absurdity; hence the court must always adopt a construction that will not reduce a piece of legislation to futility, vide: GOVERNOR of KWARA STATE v. DADA (2011) MI FWLR (Pt. 592) 1638 SC; and (b) courts of law are constituted to do substantial justice; hence statutes and rules of court must be interpreted to achieve this, vide: ABUBAKAR v. NASAMU (No. 2) (2012) 17 NWLR (Pt. 1330) 523 SC.
Even then, authorities are legion that subpoenaed witnesses can testify orally in election petition cases notwithstanding that their written statements were not filed along with the petition. See IBRAHIM v. OGUNLEYE (2010) LPELR 4556 at 26; AMACHREE v. INF,C (supra); OMIDIRAN v. ETTE (supra); etc. Thus, assuming without conceding that our arguments above may be wrong, the law is trite that a subpoenaed witness does not require a written deposition. See BELLO v. ODOFIN (2021) LPELR-55941 (CA) at 15-16 in which their Lordships of the Court below ignored and failed to follow. In that case. the Court of Appeal held thus: ‘in the case of a subpoenaed witness he does not need a written statement on oath, once a subpoena has been served on him, he is competent ‘(lie difference between a regular witness and a subpoenaed witness Is the service of a subpoena.” It is submitted that if a subpoenaed witness can testify orally as held in a plethora of cases, and given the time bound nature of election petition casts, no miscarriage of justice will be occasioned to reduce the evidence of the said subpoenaed witnesses in writing in accordance with the Federal High Court Civil Procedure Rules. We submit that the conclusion reached by the Court below upon which the evidence of PW3, PW4, PW5, PW6, PW7, PW8, PW9, PWIO, PW11 and PW13, both oral and documentary, were disregarded cannot represent the correct position of the law. The decision of the Court slaughtered justice on the altar of technicality, and such an approach has no place in modem day Jurisprudence. Sec OMIDIRAN v. ETTE (supra) at 28-29& A. It is our contention under this issue too, that the learned Justices of the Court below violated the right to fair hearing of the Appellants in the manner their Lordships raised the point, sup moor, that the 10 witnesses whose evidence was ignored and struck out were witnesses within the reach of the Appellants. Undoubtedly, whether PW3, PW4, PW5, PW6, PW7, PW8, PW9, PWIO, PW I I and PW13 were witnesses who were available and within the control of the Appellants is a question of fact and not law, which needed to be proved independently. It is instructive that the Court below overlooked the statements contained in the deposition of each of the subpoenaed witnesses that they demanded to be subpoenaed by the Court as a condition for their testimony.
Further to the above, the Court below also struck out the evidence of PW4, PW7 and PW8, on the wrong reasoning that they were persons interested; hence were caught by the provisions of Section 83(3) of the Evidence Act, 2011. We submit that these witnesses were not persons interested in the outcome of this present litigation and they are not caught by Section 83(3) of the Evidence Act, 2011. It does appear that in earning to the above conclusion, the Court below overlooked the established principle that the disqualifying interest under the exclusionary rule in Section 83(3) Evidence Act 2011 does not mean -an interest In the sense of intellectual observation or an interest purely to same party. It means an interest in the legal sense which imports something to be gained or lost”. See ANYAEBOSI v. R.T BRISCOE NIG LTD (1987) 2 NSCC 805. The Court below failed to take into account that there is no evidence on record in the instant case that any of PW4, PW7 and PW8 has any pecuniary or material interest in the result of the proceedings. It overlooked the fact that the interest of PW4, PW7 and PW8 in relation to the documentary evidence produced by them, on subpoena, was merely products of intellectual exercise. Most curiously, the Court below, with respect, did not make any adverse finding (as to whether or not they were persons interested) against PW3, PW5 and PW6; yet, their evidence was also expunged from the record, thereby occasioning a miscarriage of justice. More so as Exhibits PCD1-PCD3, PCEI-PCE4, PCF2, PCG2, PCHI, PCJI, PO2, PCJ3A-F, PC14, POC1 which were tendered by PW3, PW5 and PW6 were struck out by the Court below merely because these witnesses did not file their witness statements along with the Petition and not because the witnesses were disqualified by Section 83(3) of the Evidence Act. It is submitted that the decision of the Court below expunging the documentary evidence tendered by PW3, PW5 and PW6 was wrong and ought to be set aside by this Honourable Court.
Having thus shown that the decision of the Court below in this respect was based on wrong principles and breached the Appellants’ right to fair hearing, we urge Your Lordships to resolve this Issue 3 in favour of the Appellants and hold that the evidence of PW3, PW4, PW5, PW6, PW7 and PW8 was admissible in law and ought not have been expunged from the record of the Court We respectfully urge a reversal of this decision and an evaluation of die oral and documentary evidence tendered by these witnesses.
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