Paragraph 41
Evidence at Hearing(1) Subject to any statutory provision or any provision of these paragraphs relating to evidence, any fact required to be proved at the hearing of a petition shall be proved by written deposition and oral examination of witnesses in open court.
(2) Documents which parties consented to at the pre-hearing session or other exhibits shall be tendered from the Bar or by the party where he is not represented by a legal practitioner.
(3) There shall be no oral examination of a witness during his evidence in-chief except to lead the witness to adopt his written deposition and tender in evidence all disputed documents or other exhibits referred to in the deposition.
(4) Real evidence shall be tendered at the hearing.
(5) The Tribunal or Court may, at or before the hearing of a petition order or direct that evidence of any particular fact be given at the hearing in such manner as may be specified by the order or direction.
(6) The power conferred by subparagraph (5) of this paragraph extends in particular to ordering or directing that evidence of any particular fact be given at the trial—
(a) by statement on oath of information or belief;
(b) by the production of documents or entries in books; or
(c) in the case of a fact which is of common knowledge either generally or in a particular district by the production of a specified newspaper which contains a statement of that fact.
(7) The Tribunal or Court may, at or before the hearing of a petition order or direct that the number of witnesses who may be called at the hearing be limited as specified by the order or direction.
(8) Save with leave of the Tribunal or Court after an applicant has shown exceptional circumstances, no document, plan, photograph or model shall be received in evidence at the hearing of a petition unless it has been listed or filed along with the petition in the case of the petitioner or filed along with the reply in the case of the respondent.
(9) Such leave may be granted with costs save where in the circumstance the Tribunal or Court considers otherwise.
(10) The petitioner, in proving his case shall have, in the case of—
(a) Councillor, Chairman and State House of Assembly, two weeks;
(b) House of Representatives, three weeks;
(c) Senate, five weeks;
(d) Governor, six weeks; and
(e) President, seven weeks, to do so and each respondent shall have not more than 10 days to present his defence.
i. Paragraph 41(3) of the First Schedule to the Electoral Act presupposes that the statements on oath of all witnesses have been front loaded in compliance with paragraph 41(1) thereof. It must be stated that the language of paragraph 41(3) is clear without any ambiguity.
ii. This paragraph seeks to define the mode or manner of presentation and reception of evidence during the hearing of election Petition. It provides that proof of election shall be through a written deposition, oral examination of witnesses in open court and documents. This is subject to other statutory provisions or the provisions of this Schedule relating to evidence. See for instance, paragraph 46 (4) .
iii. Paragraph 41 (8) now requires proof of exceptional circumstances in addition to the court’s permission for an Applicant seeking to introduce as evidence, a document, plan, photograph or model not listed or filed along with their Petition or Reply. The repealed provision in the 2010 Act required only the court’s permission.
iv. Paragraph 41 (10) which is a new provision in the Act outlines different time frames for petitioners to prove their case basing it on the type of office contested i.e., Councillorship, House of Representatives, Senate, Governorship or Presidential. The repealed 2010 Act provided a uniform 14 days for all petitioners to prove their case, irrespective of the office being contested.
On the mandatory requirement for adoption of witness statements on oath:
EMMANUEL DAVID OMBUGADU & 1 OR. V. SULE AUDU ALHAJI & 2 ORS. (SC/CV/1213/2023) (Unreported) Per Kekere – Ekun, JSC @ Pg. 31.
The Supreme Court held that;
“While Section 285 (5) of the Constitution stipulates the time within which a petition shall be filled, the First Schedule to the Electoral Act makes provisions for the manner in which a petition should be presented and the documents that should accompany it. Compliance with the provisions of the Electoral Act must be within the time frame specified in the Constitution. Paragraph 41 (3) of the First Schedule to the Electoral Act presupposes that the statements on oath of all witnesses have been frontloaded in compliance with paragraph 41 (1) thereof. It must be stated that the language of paragraph 41 (3) is clear without any ambiguity. In the interpretation of statutes, the words used must be given their natural and ordinary meaning unless such interpretation would lead to ambiguity or absurdity.”
On Parag 41 (2) 1st Schedule:Akpoti-Uduaghan, PDP V. Ohere Sadiku Abubakar, APC & INEC (Petition No. EPT/KG/SEN/03/2023)
Documents consented to by parties at pre-hearing can be tendered from the bar. The aim is to save time tendering it via a witness where both parties have consented.
On Parag 41 (3) 1st Schedule: PETER OBI & ANOR V. INEC & 3 Ors. (CA/PEPC/03/2023) (Unreported)
By paragraph 41(3) of the 1st Schedule to the Electoral Act, 2022, oral examination of witnesses is not allowed. Witnesses are only to adopt
their respective written depositions and tender in evidence all disputed documents or other exhibits referred to in their depositions.
By paragraph 45)(6) of the Schedule, such written depositions of the witnesses must be filed along with the Petition.
On timeline for proving a case:
MATHEW POKO OPUORU & PDP V. INEC, APC & OBIRE BENSON (CA/AS/EP/SHA/DL/47/2023) (Unreported) at p.70 to 71
One of the issues in this petition over a State House of Assembly seat in Delta State was whether the Trial Tribunal was right to have discountenanced
the evidence of a witness which was given outside the two weeks which the Petitioner had to prove their case. The Court of Appeal held that by virtue of
paragraph 41(10)(a) of the Electoral Act, 2022, a Petitioner has 14 days within which to prove his/their case. It held further that in the instant case,
the Tribunal found out that PW7 testified outside the two weeks period so it was properly right for the lower Tribunal to have discountenanced both the oral
and documentary evidence that were tendered through PW7.
See also: THADDEUS AFFATAH & 1 OR v. OBANIKORO IBRAHIM BABAJIDE & 2 ORS. (CA/LA/EP/HR/LAG/19/2023) (Unreported)
