Paragraph 42
Calling of witnesses(1) On the hearing of an election petition, the Tribunal or Court may summon a person as a witness who appears to the Tribunal or Court to have been concerned in the election.
(2) The Tribunal or Court may examine a witness so summoned or any other person in the Tribunal or Court although the witness or person is not called and examined by a party to the election petition, and thereafter he may be cross-examined by or on behalf of the petitioner and the respondent.
(3) The expenses of a witness called by the Tribunal or Court at its own instance shall, unless the Tribunal or Court otherwise orders, be deemed to be costs of the election petition and may, if the Tribunal or Court so directs, be paid in the first instance by the Secretary in the same way as State witness’ expenses and recovered in such manner as the Tribunal or Court may direct.
(4) Where the Tribunal or Court summons a person as a witness under this paragraph, the provisions of the Civil Procedure Rules relating to the expenses of persons ordered to attend a hearing shall apply as if they were part of this paragraph.
(5) The Tribunal or Court shall in—
(a) making and carrying into effect an order for the production and inspection of documents used in the election; and
(b) the examination of any witness who produces or will produce a document, ensure that the way in which the vote of a particular person has been given shall not be disclosed.
Paragraph 42 empowers the Tribunal or Court to summon witnesses to testify whenever it
appears
to such a Tribunal or Court that such Witness has a concern in the election.
Read Sections 210-251 of the Evidence Act, 2011,
Sunmonu & Anor v. Folarin & Ors (2019) LPELR-48664(CA),
Kibiya & Anor v. Fammer & Ors (2019) LPELR-49626(CA) and
Ogba v. Vincent & Ors (2015) LPELR-40719(CA)
On the difference between a witness summoned at the instance of the Court under this provision and witness summoned at the behest of a party in a petition.
PETER OBI Obi & ANOR. V INEC & 3 ORS. (CA/PEPC/03/2023) (Unreported) @ page 94 - 95
In this case, the Petitioners tried to argue that its witnesses whose statements were not frontloaded were witnesses of the Court and so not caught by the requirement to frontload in Paragraph 4 of the 1st Schedule. The Court said the argument was misconceived, because the subpoenas in respect of those witnesses were issued upon the request of the Petitioners and therefore, those witnesses are the Petitioners' witnesses and not witnesses of the Court.
Hon. Justice Haruna Simon Tsammani JCA, held as follows:
“Indeed, the procedure for calling of witnesses by the Court is by summons as stipulated in Paragraph 42(1) of the 1st Schedule to the
Electoral Act, 2022. It is clear from the provision of that paragraph that it is a person summoned by the Court suo motu in exercise of
its powers under Paragraph 42(1) that is a witness of the Court and not a person subpoenaed at the request of a party to the case.”
