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Atiku Abubakar, the Peoples Democratic Party’s (PDP) nominee for president, has asked the Supreme Court for permission to present what he calls new evidence.
In the application he filed, Atiku said that the evidence he is seeking to present before the Supreme Court will support his claim that President Bola Tinubu submitted fraudulent documents to the Independent National Electoral Commission (INEC). The motion was filed through his team of attorneys, led by Chief Chris Uche, SAN.
President Tinubu, according to the PDP presidential candidate, committed the twin offences of forgery and perjury by his behaviour, and as a result, the Supreme Court should remove him from office.
Atiku asked the court for permission to present Tinubu’s academic records, which he said the Chicago State University (CSU) had given him.
The motion states that the CSU disclosed the 32-page records in accordance with the directives of Judge Nancy Maldonado of the Eastern Division of the District Court of Illinois in Illinois, United States of America.
Atiku based his request for permission to present new evidence against Tinubu on Order 2, Rule 12(1) of the Supreme Court Rules 1985, Section 137(1) of the 1999 Constitution, as amended, as well as the supreme court’s inherent jurisdiction as stated in Section 6(6)(a) of the 1999 Constitution.
Despite the fact that the application was submitted on October 5, Atiku’s legal team finished the filing procedure on Friday night.
The former Vice President requested leave from the court in order to “produce and for the court to receive fresh and additional evidence by way of deposition on oath from the Chicago State University for use in this appeal, to wit: the certified discovery deposition made by Caleb Westberg on behalf of Chicago State University on October 3, 2023, disclaiming the certificate presented by the 2nd respondent, Bola Ahmed Tinubu, to the Independent National Electoral Commission.”
In addition, he requested that the top court “receive the said deposition in evidence as exhibited in the resolution of this appeal” and further issue any orders it may find appropriate under the circumstances.
The application was supported by 20 grounds, one of which asserted that the deposition sought to be introduced and the papers it was to be accompanied by “would have important effect in the resolution of this appeal.”
“The deposition is relevant to this matter, having confirmed that the certificate presented by the 2nd Respondent to the Independent National Electoral Commission (INEC) did not emanate from Chicago State University, and that whoever issued the certificate presented by the 2nd Respondent, did not have the authority of the Chicago State University, and that the 2nd Respondent never applied for any replacement certificate nor was he issued any replacement certificate by the Chicago State University.
“The deposition which is on oath and deposed to in the presence of the 2nd Respondent’s Attorney is credible and believable, and ought to be believed.
“The deposition is clear and unambiguous, and no further evidence is needed to be adduced on it.
“The evidence is such that could not have been obtained with reasonable diligence for use at the trial, as the deposition required the commencement of the suit in the United States of America before receiving same. It was not possible to obtain the said evidence before the trial at the Court below.
“The deposition was made on October 03, 2023, after the conclusion of the trial at the Court below, and was not available to be tendered at the trial,” Atiku averred.
He contended that “the presentation of a forged certificate to the Independent National Electoral Commission by a candidate for election to the office of President of the Federal Republic of Nigeria, is a weighty constitutional matter, requiring consideration by the Courts as custodians of the Constitution.”
Atiku’s lawyer, Uche stated that the original certified deposition from the CSU had since been forwarded to the Supreme Court by a letter that was addressed to the Chief Registrar of the court.
More so, in a 20-paragraph affidavit that was attached in support of the appeal marked: SC/CV/935/2023 with petition number: CA/PEPC/05/2023, the deponent, one Uyi Giwa-Osagie, who is a legal practitioner, averred that the certificate President Tinubu presented to INEC in support of his qualification to contest the presidential election, was earlier tendered in evidence before the Presidential Election Petition Court, PEPC, and was marked as Exhibit PBDlB.
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He attached a copy of the said certificate that was admitted in evidence by the PEPC in the appeal before the Supreme Court as Exhibit “E”.
Giwa-Osagie added that the same document was tendered with the deposition in the USA and that at the trial, a certificate obtained from the Chicago State University was also tendered in evidence as exhibit PBE4.
He also annexed the document as exhibit “G”.
“That the deposition is a relevant piece of fresh evidence explaining the status of the certificate the 2nd Respondent presented to INEC in support of his qualification to contest the election,” Giwa-Osagie added.
Atiku’s legal team said they would during the hearing at the Supreme Court, rely on the Record of Appeal already transmitted.
“My Lords, we most humbly adopt the facts as presented in the supporting affidavit, and the same will be referred to in the course of the argument,” Atiku’s lawyer added, insisting that the apex court has the power, jurisdiction and discretion to grant an application for fresh or additional evidence to be adduced on appeal.
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“Order 2 Rule 12 (7), (2) and (3) of the Supreme Court Rules provide as follows:
(1) A party who wishes the Court to receive the evidence of witnesses (whether they were or were not called at the trial) or to order the production of any document, exhibit or other thing connected with the proceedings in accordance with the provisions of Section 33 of the Act, shall apply for leave on notice of motion prior to the date set down for the hearing of the appeal.
“The application shall be supported by the affidavit of the facts on which the party relies for making it and of the nature of the evidence or the document concerned.
“It shall not be necessary for the other party to question the additional evidence intended to be called but if leave is granted the other party shall be entitled to a reasonable opportunity to give his own evidence in reply if he so wishes.
“My Lords, we submit that the requirements for the grant of applications to adduce fresh or additional evidence on appeal have been established by this Honourable Court in a plethora of cases, and they are as follows:
“It must be shown that the evidence sought to be adduced in evidence could not have been obtained with reasonable diligence for use at the trial.
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“The fresh evidence must be such that if given, it would probably have an important effect on the result of the case, although it need not be decisive; and
“The evidence must be such as is presumably to be believed, in other words, it must be apparently credible,” Atiku’s lawyer, Uche, SAN, argued.
Besides, he contended that in line with a plethora of cases that were previously determined by the Supreme Court, the only requirement from the court was for it to do justice, fairly, equitably and justly.
“We humbly submit that the grant of the present application will certainly be in furtherance of the course of justice in this matter.
“This is a case in which the 2nd Respondent was returned purportedly as the winner of the said election to the office of the President of the Federal Republic of Nigeria, and the Appellants/Applicants have amongst other grounds, challenged the election of the 2nd Respondent on the ground of his qualification to contest the said election and more especially on the basis that the 2nd Respondent’s presented a forged document to the INEC.
“The Appellants/Applicants have also in their appeal challenged the striking out of their pleadings raising the issue of qualification of the 2nd Respondent to contest the said election.
“The evidence required to establish that the certificate presented by the 2nd Respondent to the 1st Respondent in support of his qualification to contest the said election is the deposition from the Chicago State University, which deposition did not become available until after the determination of the case by the lower Court.
“The said evidence is now available, and forwarded to this Honourable Court”.
“We submit that the Appellants/Applicants have successfully explained the delay and difficulties in obtaining the said evidence earlier than now, and all the necessary steps taken to obtain the evidence and to present same to this Honourable Court.
“We submit that a successful proof of the said allegation will render the 2nd Respondent unqualified to have contested the said election ab initio for presentation of forged certificate to the Independent National Electoral Commission (INEC) pursuant to the provisions of Section 137(1)(j) of the Constitution, being a weighty matter of constitutional importance,” Uche, SAN, added.
He equally argued that the Supreme Court had in the case of Saleh vs Abah, 2017, held thus: “The intention of the Constitution is that anyone who had presented a forged certificate to INEC should stand automatically disqualified for all future elections if, as in this case, a Court or tribunal finds the certificate to have been forged, and it matters not whether or not such fact is further fraudulently or desperately concealed in subsequent elections or declaration forms.
“No decent system or polity should condone, or through judicial policy and decisions, encourage the dangerous culture of forging certificates with impunity to seek electoral contest.”
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Atiku’s team maintained that “a weighty constitutional issue” as the one raised in the case against Tinubu, was “akin to a jurisdictional issue which is so fundamental and important that it can be raised at any time and in any manner in the course of the proceedings or on appeal.
“We pray this honourable court to resolve this issue in favour of the Appellants/Applicants and grant this Application,” Atiku’s lawyer added.
Meantime, the Supreme Court has yet to fix a date for the motion to be heard.
