- This question has arisen in the light of the Respondents’ decision to close their respective cases after the Petitioner has closed its case. The question has therefore been asked whether the first Respondent ought to have opened its case. In that case, the Electoral Commission (EC) Chairperson would have been compelled to testify because the first Respondent filed one witness statement which it intended to rely on by way of evidence to vindicate its case. This witness statement was that of the EC’s Chairperson.
- Before dealing with this point, the preliminary question to ask is whether the EC was bound to open its defence at the close of the Petitioner’s case. In civil proceedings, the courts have long recognised the right of every defendant to elect, at the close of the plaintiff’s case, to make a submission to the Court that on the plaintiff’s showing at the close of the plaintiff’s case, there is no case made out for the defendant to answer. The defendant can in such circumstances elect to make a submission of no case to answer.
- The appropriate principles governing submissions of no case in civil law are clear. The effect of the case law decisions is that, in civil suits, if the defendant elects to call no evidence, then the judge will determine the outcome on the balance of probabilities, albeit with the possibility of adverse inference being drawn against the defendant for not giving evidence. See the case of Benham Ltd v Kythira Investments Ltd & Another  EWCA Civ 1794. In this case, the Court did not need to put the first Respondent to an election. The first Respondent itself elected not to give evidence.
- Be that as it may, the EC chairperson would inevitably have had to testify for the first Respondent if the first Respondent had elected to open its defence, unless the first Respondent subsequently filed additional witness statements and elected to abandon the witness statement filed for the EC chairperson.
- It is noted here that the EC Chairperson is not a party to the proceedings either personally or in her official capacity. The person which is party to the proceedings is the Commission qua Commission.
- In so far as witness statements are concerned, the rules require that a party who intends to call a person to testify on their behalf, file a witness statement which that witness will rely on at the trial as their testimony in chief, unless the Court otherwise directs. The provisions of Order 38 rule 3B(2)of the High Court (Civil Procedure) (Amendment) Rules (C.I. 87) therefore provide as follows;
“3B. Requirement to serve witness statements for use at trial.
(2) The Court shall … order a party to file and serve on the other parties any witness statement of the oral evidence which the party serving the statement intends to rely on in relation to any issues of fact to be decided on at the trial.”
- As it will be recalled, the Court ordered that the parties file witness statements in respect of the witnesses they intended to call at the trial to testify on their behalf.
- The rules are however quite clear, that a party is not bound to call the persons for whom they have filed witness statements and whose testimonies they intend to rely on at the trial. The law allows a party who has filed witness statements to abandon the witness statement at the trial.
- The rule allows the party who has filed witness statements for the persons they intend to call to testify at the trial, several options in respect of the witness statements so filed. This is provided for in rule 3E as inserted by Order 38 of the High Court (Civil Procedure) (Amendment) Rules (C.I.87). The rule is clearly headed; Use at trial of witness statements which have been served.
- The first and well known option open to a party who has filed the witness statement is to call the person whose witness statement it is, to testify at the trial. This is provided for in subrule (1) of rule 3E as inserted by Order 38 of C.I. 87. It says that;
“(1) If a party has served a witness statement and that party wishes to rely at the trial on the evidence of the witness who made the statement, that party shall call the witness to give oral evidence unless the Court orders otherwise…”
- The second option open to the party who has filed the witness statement is to refuse to call that person whose witness statement it is and “put[s] the statement in as hearsay evidence.” This is provided for in the same rule.
- Finally the party may refuse to call the witness, and not stopping there, refuse to put the statement in as hearsay evidence and thereby, completely abandon the witness statement. This is recognised in subrule (5) of the same rule 3E as inserted by Order 38 of C.I. 87.
- Having said that, the provisions of rule 3E(5) gives the opposite party an option where the “party who has served a witness statement does not call the witness to give evidence at the trial or put the witness statement in as hearsay evidence.” It goes on to say that in such circumstances “any other party may put the witness statement in as hearsay evidence.”
- As stated, the rule is quite simplistic, whereas in the case of the petition, the petitioner had closed his case and the first Respondent elected not to call the person on whose behalf the witness statement was filed, it left the Petitioner stranded because the Petitioner had no control over the proceedings anymore.
- In the situation in which the Petitioner found himself, if the Petitioner considered the Chairperson’s testimony crucial to his case, the Petitioner had two main options by way of strategy.
- First, the witness could seek the leave of the Court in the interest of justice to reopen their case and tender in the document as a hearsay evidence. In such a case, the witness would argue that they legitimately expected that the first Respondent would tender in the statement and that it will serve the interest of justice to have the statement tendered in evidence through one of their witnesses as hearsay evidence.
- Secondly, maybe the Petitioner ought not to have played based on the expectation that the first Respondent would call the Chairperson especially that the rules do not make it compulsory for the first Respondent to call her as its witness.
- The first Respondent could have subpoenaed the Chairperson. This was possible especially that the case of the Petitioner was largely documentary. The documents relied upon by the Petitioner could have been put to her in cross-examination of the Chairperson subject to leave of the Court to treat her as an adverse witness. This is permitted by section 72 of the Evidence Act, 1975 (NRCD 323). It states thus;
“72. Adverse witness in a civil action
(1) Subject to the discretion of the Court, in a civil action a party, or a person whose relationship to a party makes the interest of that person substantially the same as a party, may be called by an adverse party and examined as if on cross-examination at any time during the presentation of evidence by the party calling the witness.
(2) Where the witness is cross-examined by the lawyer of that witness or by a party who is not adverse to the party with whom the witness is related, that examination shall be treated as if it were a re-examination.”
- As matters stand, the Supreme Court will determine the matter by asking itself two main questions. First, the question is whether accepting the Petitioner’s evidence at its face value, no case has been established in law, and secondly, whether the evidence led for the Petitioner is so unsatisfactory or unreliable that the court should find that the burden of proof has not been discharged. See Storey v Storey  P. 63 C.A.