Effect of the decision of an election tribunal preventing subpoenaed witnesses from testifying on ground of non-filing of witness depositions on oath

BASHIR & ANOR v. KURDULA & ORS (2019) LPELR-48473 (CA)

In the Court of Appeal
In the Sokoto Judicial Division
Holden at Sokoto
ON SATURDAY, 7TH SEPTEMBER, 2019
Suit No: CA/S/EPT/HR/6/2019
Before Their Lordships:
AHMAD OLAREWAJU BELGORE, JCA
AMINA AUDI WAMBAI, JCA
FREDERICK OZIAKPONO OHO, JCA

Between
1. HON. SALIHU ISAH BASHIR
2. PEOPLES’ DEMOCRATIC PARTY (PDP) -Appellant(s)

And

1. YUSUF ISAH KURDULA
2. ALL PROGRESSIVE CONGRESS (APC)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
4. RESIDENT ELECTORAL COMMISSIONER (SOKOTO STATE)
5. THE RETURNING OFFICER, TANGAZA/GUDU FEDERAL CONSTITUENCY
6. THE ELECTORAL OFFICER, TANGAZA LOCAL GOVERNMENT
7. THE ELECTORAL OFFICER, GUDU LOCAL GOVERNMENT
– Respondent(s)

8. THE LOCAL GOVERNMENT COLLATION OFFICER, TANGAZA LOCAL GOVERNMENT
9. THE PRESIDING OFFICER, INEC GINJO DISPENSARY POLLING UNIT
10. THE PRESIDING OFFICER, INEC RUWA WURI PRI. SCHOOL POLLING UNIT
11. THE PRESIDING OFFICER, INEC NUKURU POLLING UNIT
12. THE PRESIDING OFFICER, INEC TSITSE POLLING UNIT
13. THE PRESIDING OFFICER, INEC CHEKEHI POLLING UNIT
14. THE PRESIDING OFFICER, INEC BARKATUBE POLLING UNIT
15. THE PRESIDING OFFICER, INEC GURAME BAKIN KASUWA POLLING UNIT
16. THE PRESIDING OFFICER, INEC GWABRO POLLING UNIT
LEAD JUDGMENT DELIVERED BY AMINA AUDI WAMBAI, J.C.A.

FACTS OF THE CASE
On the 23/2/2019, the 3rd Respondent (INEC) conducted the Nationwide National Assembly Elections. In the election for Tangaza/Gudu Federal Constituency of Sokoto State, the 1st Appellant (Hon. Salihu Isah Bashir) was sponsored by the 2nd Appellant (PDP), to contest the seat of member into the Federal House of Representatives for the constituency. The 2nd Respondent (APC) sponsored the 1st Respondent (Yusuf Isah Kurdula) to contest the same seat. At the conclusion of the election, the 3rd Respondent (INEC) returned the 1st Respondent (Yusuf Isah Kurdula) as the winner of the election having scored a total votes of 27, 220 higher than the 26, 047 polled by the 1st Appellant (Hon. Salihu Isah Bashir).
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The appellants who were unhappy with the return of the 1st Respondent, entreated the trial Tribunal vide an election petition challenging the return of the 1st Respondent; that the 1st Respondent was at the time of the election not qualified to contest the election; that the 1st Respondent was not duly elected by a majority of lawful votes at the election; and that the 1st petitioner was the candidate who scored the highest number of lawful votes cast at the election and ought to have been declared the winner and so returned.

Consequently, they sought from the trial Tribunal among other reliefs, a determination that the 1st Respondent was not qualified to contest the election as the candidate of the 2nd Respondent (APC); that the election of the 1st Respondent is invalid on ground of non-compliance with the provisions of the Electoral Act 2010 (as amended) and INEC Regulations and Guidelines for the conduct of the 2019 General Elections; that the return of the 1st Respondent is a nullity; that the 1st petitioner is entitled to be returned by the 3rd and 5th Respondents as having been duly elected to the office/membership of House of Representatives for Tangaza/Gudu Federal Constituency of Sokoto State.

After the pre-hearing conference, the matter went to trial. At the conclusion of trial, in a unanimous judgment the trial Tribunal dismissed the Appellants’ petition in its entirety. That dismissal of the petition gave rise to this appeal.

ISSUES FOR DETERMINATION
The Court determined the appeal on this sole issue couched as follows: “Whether the Appellants’ right to fair hearing was violated when the lower Court held that Appellants’ subpoenaed witnesses could not give oral evidence without written deposition on Oath.”

SUBMISSION OF THE APPELLANTS’ COUNSEL
In arguing the issue which questions the correctness, the justice and fairness of the trial Tribunal in disallowing the Appellants’ subpoenaed witnesses from testifying on ground that they did not file written depositions, it was submitted for the Appellants that the requirement of Paragraphs 41(3), (5) and (6) of the 1st Schedule to the Electoral Act and the Practice Directions that written statements on Oath of witnesses be filed along with the petition cannot override and impede the provisions of the Evidence Act, 2011 which is the substantive law on the matter, citing in support the cases of ANPP vs. INEC (No. 2) (2010) 13 NWLR (Pt. 1212) 456, 512; ANPP vs. INEC (2010) 13 NWLR (Pt. 1212) 549 at 588 – 589.

It was contended that barring collusion or illegality it cannot be envisaged that a witness will depose or adopt a witness statement on Oath in proof of his adversary; (the petitioner), stressing that the law does not command impossibilities, as the Court is enjoined to ensure that justice is not defeated by technical rules as decided in Michael Okaroh vs. The State (1988) 3 NWLR (Pt. 81) 214 at 220; (1988) LPELR-20526 (CA). To this extent, learned counsel took a different position from that taken by the Tribunal on the application of the provisions of Order 3 Rule 3(ii) of the Federal High Court 2009 which the Tribunal held requires such subpoenaed witnesses to file written depositions on Oath.

SUBMISSION OF THE RESPONDENTS’ COUNSEL
Counsel submitting on behalf of the 1st Respondent stated that the Tribunal was right in upholding the objection and holding that the attempt to call the said witness to testify without a deposition violates the provisions of Paragraph 4(5) of the 1st Schedule to the Electoral Act and Order 3 Rule 1(ii) of the Federal High Court made applicable to the Tribunal pursuant to Paragraph 54 of the 1st Schedule to the Electoral Act, 2010 (as amended). It was submitted in argument that by Paragraph 5(i)(b) of the 1st Schedule to the Electoral Act, an election petition presented for filing before the Tribunal must be accompanied by written statement on Oath of witnesses intended to be called by parties and to that extent, Paragraph 41(3) of the said 1st Schedule to the Electoral Act which makes no distinction between a subpoenaed witness and a voluntary witness, prohibits oral examination of witnesses.
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Counsel for the 2nd Respondent in chorus with Counsel for the 1st Respondent on this issue, also recalled the objection taken by the 2nd Respondent at the Tribunal and applauded the Tribunal’s Ruling refusing the application. With regards to the 3rd to the 16th Respondents’ brief, it is also in tandem with and almost a replica of the briefs of the 1st and 2nd Respondents.

RESOLUTION OF ISSUE
Deciding on this issue, the Court held as follows: “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.

The law commands that which is reasonable and possible and not what is illogical or naturally impossible. Thus, the legal maxim “lex non cogit ad impossibilia” “the law does not command the impossible” applies here. It follows that the Respondent can only testify for a petitioner if compelled to do so by a subpoena. This is the import of the Appellant’s application for the issuance of “subpoena duces tecum ad testificandum” to compel, through the instrumentality of the subpoena, the subpoenaed witnesses to testify on their behalf, a function which the subpoena is intended to perform.

It follows that the provisions of Paragraph 4(5)(i)(b) and 41(3) of the 1st Schedule of the requirement of frontloading witnesses’ deposition on Oath only contemplates willing and voluntarily witnesses who elect out of their volition to testify for the petitioner. They do not and cannot be contemplated or intended to apply to witnesses who are compelled by an order of Court through a subpoena duces tecum ad testificandum, to testify before the Tribunal, as it is not logical to expect such subpoenaed witnesses who are Respondents to the petition to prepare witness deposition to aid the case of his adversary. Any such expectation will go beyond the realm of any reasonable logic.

The Respondents, have vehemently argued in support of the stand of the lower Court (Tribunal) that in the absence of any specific provision in the Rules directly on the matter whether the evidence of a subpoenaed witness must be rooted in a sworn deposition, the proper course of action is to fall back, as the Tribunal did, to the provisions of Paragraph 54 of the 1st Schedule to apply the Federal High Court Rules which has made a provision for the situation in its Order 3 Rule 3(1)(e)(ii).

Admittedly at the moment, there is no specific provision in the 1st Schedule for summoning a witness to the Court by means of subpoena duces tecum ad testificandum and how such subpoenaed witness is to testify before the Court. Paragraph 54 of the 1st Schedule allows the Tribunal to have recourse to the practice and procedure of the Federal High Court with necessary modifications to render them applicable.

The said paragraph 54 provides: Subject to the express provisions 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 act, as if the petitioner and the respondent were respectively the plaintiff and the defendant in an ordinary civil action.”
Order 3 Rule 3(1)(e)(ii) stipulates: “The witnesses who require subpoena or summons shall at the instance of the party calling them be served with civil form 1 (a) before the filing of the statements of such witnesses.”

It is clear in the wordings of Paragraph 54 above reproduced, that the application of the Federal High Court (Civil Procedure) Rules to an election petition where no specific provision has been made in the Electoral Rules or Practice Directions, is subject to such modifications as are necessary to render them applicable having regards to the sui genesis nature of election petition which stands it out distinctly in a class of its own, from the normal civil causes and matters. Where applicable to an election petition, the Rules must be modified to reflect the peculiar nature of election petition more so where a blanket application would negate or run counter to the very reason for taking it out in the first instance, from the general Civil Procedure Rules.

It is clear in the wordings of Paragraph 54 above reproduced, that the application of the Federal High Court (Civil Procedure) Rules to an election petition where no specific provision has been made in the Electoral Rules or Practice Directions, is subject to such modifications as are necessary to render them applicable having regards to the sui genesis nature of election petition which stands it out distinctly in a class of its own, from the normal civil causes and matters.

Where applicable to an election petition, the Rules must be modified to reflect the peculiar nature of election petition more so where a blanket application would negate or run counter to the very reason for taking it out in the first instance, from the general Civil Procedure Rules.”

The issue was resolved in favour of the Appellants.

HELD
On the whole, the Court found merit in the appeal and accordingly allowed same.

Appearances:
Anayo Ilo, Esq. -For Appellant

Chief J. E. Ochidi, Esq. -For 1st Respondent
Chief Steve Nwoke, Esq. -For 2nd Respondent
Oladipo Tolani, Esq. -For 3rd – 16th Respondent

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