WHAT HAPPENS WHEN A WRITTEN STATEMENT ON OATH IS MADE AFTER THE PERIOD WITHIN WHICH TO FILE HAS LAPSED?

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CASE TITLE: ARARUME & ANOR v. INEC & ANOR (2019) LPELR-48397(CA)

JUDGMENT DATE: 23RD AUGUST, 2019

PRACTICE AREA: ELECTORAL PETITION

LEAD JUDGMENT: HARUNA SIMON TSAMMANI, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION

This appeal borders on Electoral Petition.

FACTS

This appeal is against the ruling of the Governorship Election Petition Tribunal, Imo State.

On the 9th day of March 2019, an election was conducted by the 1st Respondent to elect the person to occupy the office of the Governor of Imo State of Nigeria. The 1st Appellant, 2nd Respondent and others were candidates at the election. The 1st Appellant contested the election on the platform of the 2nd Appellant, while the 2nd Respondent contested on the ticket of the 3rd Respondent.

At the close of the election, the 1st Respondent declared the 2nd Respondent the winner of the election. Being unhappy with the result of the election, the Appellants filed a Petition before the Tribunal. Pleadings were duly filed and the pre-hearing concluded, but at the hearing of the Petition, the Petitioners fielded the PW2, who was before the Tribunal on subpoena duces tecum and ad testificandum. When the witness sought to adopt his written statement made on Oath, the 2nd Respondent raised an objection to the said PW2 adopting his written statement on oath, on the ground that the statement was made after the period within which to file the petition had lapsed.

After listening to arguments of counsel, the trial Tribunal upheld the objection, thereby refusing to allow the said witness adopt the written statement on oath. Dissatisfied, the appellant appealed to the Court of Appeal.

ISSUES FOR DETERMINATION

The Court determined the appeal on these issues couched as follows:

Whether the learned trial Judges of the Tribunal were right when they barred or prevented the Appellants’ witness who was summoned pursuant to a subpoena duces tecum and subpoena ad testificandum from testifying, more so when the said subpoena was neither varied nor set aside?
Whether the learned trial judges did not misdirect themselves in law when they relied on the provisions of Order 3 Rule 3(1) (e) as well as Civil Form 1 (A) of the Federal High Court (Civil Procedure) Rules, 2009 to prevent the Appellants’ witness from testifying when the sanction prescribed for non-compliance in those provisions of the said Rules do not support barring a subpoenaed witness from offering his testimony to a Court or Tribunal as the case may be?
Whether the learned trial judges did not err in law when they raised suo motu the issue of non-compliance with the issuance or delivery of Form I(A) aforesaid pursuant to Order 3 Rule 3(1) of the Federal High Court (civil procedure) Rules, 2009 and decided on it without first calling on parties to address the Tribunal on the issue so raised suo motu and which thereby occasioned a miscarriage of justice by denying the petitioners the opportunity to present a part of their petition through the subpoenaed witness?
Whether the learned trial judges did not err in law when they neither held themselves bound by the decision of the Court of Appeal in Ogba V Vincent (2015) 10 CAR 130 and Kindred decisions in that direction nor held that the said decision was inapplicable, but nevertheless, prevented the Petitioners’ from testifying and thereby denying the Petitioners their right to fair hearing?

DECISION/HELD

On the whole, the Court of Appeal dismissed the appeal and affirmed the decision of the Tribunal.

RATIOS:

ELECTION PETITION – ELECTION PETITION PROCEEDINGS: Whether a statement on oath or a document not frontloaded within the time prescribed for filing of a petition can be employed in the prosecution of the petition without the leave of Court or Tribunal first sought and obtained.
ELECTION PETITION – ELECTION PETITION PROCEEDINGS: Nature of election petition matters.