Subpoenaed Witnesses: When Law and Justice are on opposing Sides -By David O. Ogundipe, Esq.

The decision of the PEPT has generated mixed reactions within and outside Nigeria since it was delivered on 6th September, 2023. I have read the consolidated judgment of 800 pages. Many interesting issues of law and facts were appraised and pronounced upon by the Tribunal. I am also aware that aggrieved parties have lodged appeals to the Supreme Court, hence the decision has become subjudice. While I would like to reserve my comments on the judgment till the final verdict of the Apex Court is handed down, I am unable to wait to comment on the findings of the Tribunal in relation to some of the Petitioners’ witnesses

For context, the said witnesses are subpoenaed witnesses. A subpoenaed witness is a witness present in court on the order of that court, to testify or produce evidence in relation to a pending case. The jurisprudence that birthed the idea of subpoenaing witnesses was aimed at catering to key witnesses who would not have presented themselves ordinarily to testify like regular witnesses. For example, if an individual has his employment terminated and he institutes an action to challenge same, he cannot except that the HR officer of the organisation would willingly submit himself to testify in support of his case, for obvious reasons. Hence, these “difficult”, “uncooperative” and “adverse” witnesses are usually compelled to appear as witnesses through subpoena. Thus, subpoenaed witnesses are almost always from the side of the adversary. In OWOLABI v. BAKARE (2013) LPELR-21968(CA), while commenting on the nature of Subpoena, the Court of Appeal, relying on the Blacks’ law dictionary defined “subpoena duces tecum” as “a subpoena ordering the witness to appear and to bring specified documents, records or things”; while “subpoena ad testificadum” is defined as “a subpoena ordering a witness to appear and give testimony.” By this definition, a person who attends Court on subpoena is no doubt a witness.”

The Rules of different Courts made provision for subpoenaed witnesses, separate from regular witnesses and the manner by which they can be made to appear in Court. The testimonies or documents furnished by subpoenaed witnesses are often the missing bits that tell the complete story needed for the courts to effectively determine a suit. This might explain why the practice of subpoenaing witnesses is typical in election matter as electoral officers are often required to either present documents used during the election or speak to what transpired at the polls or at the level of administration. The provision of law that requires only the makers of documents to tender them also makes subpoenaing certain witnesses necessary. In the case of BELLO & ORS v. ODOFIN & ORS (2021) LPELR-55941(CA), while drawing a distinction between regular and subpoenaed witnesses, the Court of Appeal stated that the difference between a regular witness and a subpoenaed witness is the service of a subpoena. The Court went further to state that if a subpoena is not served before a witness is brought to Court, such a witness is a regular witness who by Order 3 Rule 2 (c) and (d) of the High Court of Ogun State Civil Procedure Rules 2014 requires a written and frontloaded statement on oath before he could testify on behalf of the party that brought him to testify.

However, in election matters, technical and ingenious submissions often feature from counsel when presenting their cases, largely because of the stakes in such matters. One of such submissions saw a joint consideration of Section 285(5) of the 1999 Constitution, Section 132(7) of the Electoral Act, 2022 and Paragraph 4 [particularly paragraph 4(5)] and Paragraph 14 (2) of the 1st Schedule to the Electoral Act, 2022 in cases like Ararume & Anor v. INEC & Anor (2019) LPELR-48397(CA), ANDP v. INEC & Ors, Appeal No. CA/A/EPT/406/2020; Okwuru v. Ogbee & Ors (2015) LPELR-40682(CA), leading the Courts to interrogate the philosophy underlining the use of subpoena. From the decisions, I can say that they came to two conclusions:

1. That issuing subpoena for and bringing a witness that is not an adversary or uncooperating witness through subpoena runs against the spirit and purpose of subpoena; and

2. That given the provision of the Electoral Act, 2022, which does not make any distinction between subpoenaed witnesses and regular witnesses like regular Rules of Courts in conventional civil matters, it is deemed that every witness must comply with the provisions of Paragraph 14 (2) and Paragraph 4 [particularly paragraph 4(5)] of the 1st Schedule to the Electoral Act, 2022, which provides that:

(5) The election petition shall be accompanied by—

(a) a list of the witnesses that the petitioner intends to call in proof of the

petition;

(b) written statements on oath of the witnesses; and

1. c) copies or list of every document to be relied on at the hearing of the petition.

I am in complete agreement with the first leg of the conclusion. With due respect, I could not associate myself with the reasoning and conclusion of their lordships on the second leg. The reason for my alignment and dissent would be stated anon.

A cursory look at Paragraph 5(b) shows that the written statement on oath of the witness must board the same bus with the Petition, which must be filed within 21 days after the declaration of the result of the election sought to be challenged. In essence, the law, in our electoral jurisprudence is that every written statement on oath of witnesses, (ordinary, expert, adversary, or cooperating) which a party intends to call must be filed along with the petition within the time prescribed by Section 285(5) of the Constitution and Section 137(7) of the Electoral Act. It is the view of the Tribunal that any belated written statement on oath of a witness would be deemed as a surreptitious attempt at amending the petition.

It is my view that the rigid approach of the Tribunals and Courts to the controversy surrounding the place of subpoenaed witnesses has created a clash between law and justice, such that if not invoked in case-appropriate fashions, would foist a fait accompli on the case of every petitioner. I have earlier stated that the pronouncement of the Tribunal, which was founded on judicial precedent represents the law, but there are cases where law and justice are on opposing sides – to insist on strict adherence to law in such cases, in my view, would be to use law to the sabotage of justice. A court which consistently does the bidding of a law without justice in mind cannot be said to be rule of law compliant, even if such law were the subject of detailed Statute duly enacted and scrupulously observed. In the case of UGBA v. SUSWAN (2014) LPELR 22882 (SC), the Supreme Court held thus:

“It is settled law that the provision of any law, not even the Constitution can be strictly applied in such a manner as to abrogate, breach, violate or trample on the constitutional guaranteed right of a party to fair hearing”

It is always beneficial to interrogate the purpose for which certain procedures and laws are made, so as to do justice that would accord with the spirit of such law. While the Courts and Tribunals would be right to carefully examine the place of every subpoenaed witness, with a view to unveiling the ploy to belatedly introduce a friendly witness under the guise of a subpoenaed witness, it would be a disservice to our jurisprudence to insist that witnesses such as electoral officers, election observers, security officers, and a host of neutral and adverse actors, whose roles lie at the heart of every election, be classified simply as witnesses under Paragraph 4(5) of the 1st Schedule to the Electoral Act.

This author finds it very interesting that in the decision of their lordships under reference, in fidelity to the duty to prioritise the interest of justice, they resisted the invitation by the Petitioners to interpret Section 134(2)(b) of the Constitution strictly and in convenient installment, in a manner that honouring such invitation would have occasioned absurdity. In a very lucid language, their lordships held that:

“A narrow interpretation that would do violence to the provisions of the Constitution and fail to achieve the goal set by it must be avoided. Our Constitution is based on the principles of Freedom, Equality and Justice in all ramifications, and is for the purpose of consolidating the unity of our people… The interpretation of Section 134(2)(b) of the Constitution being urged on us by the Petitioners is an unjust manipulation of the Constitution to create inequality of votes. It negates the principles of Equality and Justice, democracy and social justice and participation of the people in their government enshrined in our Constitution. It strikes at the foundation of our Constitution. It is capable of further dividing the citizens of this Country.”

Still in the decision, their lordships went further to state, without equivocation, that politicians are deft at using all sort of means and sentiments to divide the citizens of this country, and that the interpretation being pushed was the latest invention in that regard. They concluded that to subscribe to such interpretation and accord it a place of pride in the domain of case law would fall squarely against the letters and spirit of the Constitution. This pronouncement is a reflection of not just their lordships’ erudition, but an affirmation of their loyalty to justice and the readiness to look beyond the letters of the law, when such would ridicule justice. Unfortunately, the failure to approach Paragraph 4(5) of the 1st Schedule to the Electoral Act with the same dedication and lenses robs the decision of its full credit.

Apart from the fact that it is almost impossible for a Petitioner to have an adverse or neutral witness who would be willing to make an honest statement and depose to same within 21 days, rogue elements who might be electoral officers or work as one might see a blanket restriction of every witness as bound by Paragraph 4(5) of the 1st Schedule as an endorsement of electoral malpractices. It would also amount to a judicial promotion of “do or die” approach to election, as every aspirant would know that regardless of the havoc wrecked in their bid to win, the dearth of key and credible witnesses would create a blockade to the challenge of their return in Court.

In conclusion, slavish reliance on statutory and judicial principles should only be an attractive route to our courts when such leads to a just end. Laws are made for men, not the other way round. It is hoped that regardless of the outcome of the appeal lodged at the Supreme Court, it would reconcile the reasonings and conclusions in decisions like Amachree & Anor v. INEC & Ors (2019) LPELR-48677(CA); Ararume & Anor v. INEC & Anor (2019) LPELR-48397(CA), ANDP v. INEC & Ors, Appeal No. CA/A/EPT/406/2020; Okwuru v. Ogbee & Ors (2015) LPELR-40682(CA) for the greater good as they relate to the place of subpoenaed witness in our electoral jurisprudence.