In an attempt to unseat President Bola Tinubu, PDP presidential contender Alhaji Atiku Abubakar has asked the Supreme Court for permission to submit what he described as new evidence.
The evidence that Atiku is attempting to present before the supreme court, according to the motion he filed through his legal team led by Chief Chris Uche, SAN, would support his claim that President Tinubu of the ruling All Progressives Congress, APC, submitted forged documents to the Independent National Electoral Commission, INEC, to support his eligibility to run in the February 25 presidential election.
The former vice president stated that President Tinubu ought to have been removed from office by the Supreme Court for committing the crimes of forgery and perjury.
More specifically, Atiku asked the court for permission to submit Tinubu’s academic records, which he claimed were sent to him by Chicago State University, or CSU, on October 2, 2023.
The motion states that the District Court of Illinois, Eastern Division, Illinois, United States of America’s Judge Nancy Maldonado ordered the CSU to reveal the thirty-two-page records.
On the basis of Order 2, Rule 12(1) of the Supreme Court Rules 1985, Section 137(1) of the 1999 Constitution, as amended, and the inherent jurisdiction of the highest court as enumerated in Section 6(6)(a) of the 1999 Constitution, Atiku based his motion for leave to present new evidence against Tinubu.
Despite the application’s October 5 deadline, Atiku’s legal team polished the filing procedure on Friday evening.
In essence, the PDP flag-bearer asked the court for permission to use a certified discovery deposition made by Caleb Westberg on behalf of Chicago State University on October 3, 2023, which disavowed the certificate that Bola Ahmed Tinubu, the second respondent, had presented to the Independent National Electoral Commission, as fresh and additional evidence for the use in this appeal.
Along with praying for the supreme court to “receive the said deposition in evidence as exhibit in the resolution of this appeal,” he also asked that it issue whatever orders it saw fit given the facts of the case.
The deposition that was requested to be introduced, along with the supporting documentation, “would have important effect in the resolution of this appeal,” according to one of the 20 grounds that supported the application.
The confirmation in the deposition is pertinent to this case because it shows that the certificate the second respondent gave to the Independent National Electoral Commission (INEC) was not issued by Chicago State University, that the person who issued the certificate did not hold official authority at Chicago State University, and that the second respondent never requested a replacement certificate nor was given one by the university.
“The deposition is trustworthy and believable and should be believed. It was given under oath in front of the attorney for the second respondent.
“No other evidence needs to be adduced on the deposition as it is obvious and unequivocal.
Due to a requirement in the deposition that the litigation must have started in the United States of America before receiving the evidence, it could not have been secured for use in the trial with reasonable diligence. Prior to the trial at the lower court, it was not possible to gather the aforementioned evidence.
According to Atiku, “the deposition was made on October 03, 2023, after the trial at the Court below, and was not available to be tendered at the trial.”
As the custodians of the Constitution, the courts must take into account the serious constitutional issue of a presidential candidate in the Federal Republic of Nigeria presenting a falsified certificate to the independent National Electoral Commission.
The original certified deposition from the CSU, according to Atiku’s attorney Uche, SAN, was sent to the Supreme Court via a letter addressed to the court’s chief registrar.
Furthermore, in a 20-paragraph affidavit attached to support the appeal with the petition number CA/PEPC/05/2023 and the marking SC/CV/935/2023, the deponent, a lawyer named Uyi Giwa-Osagie, claimed that the document President Tinubu presented to INEC proving his eligibility to run for president had previously been tendered in evidence before the Presidential Election Petition Court, PEPC, and was designated as Exhibit PBDlB.
A copy of the aforementioned certificate, which the PEPC had admitted into evidence in the Supreme Court appeal, was attached by him as Exhibit “E.”
Giwa-Osagie said that the identical document was submitted with the deposition in the United States and that a Chicago State University certificate was also submitted as exhibit PBE4 during the trial.
Additionally, he appended the document as exhibit “G.”
“That the deposition is a pertinent piece of new evidence clarifying the status of the certificate the Second Respondent submitted to INEC to support his eligibility to run for office,” Giwa-Osagie continued.
Atiku’s legal team stated that they would use the previously transmitted Record of Appeal during the Supreme Court hearing.
In addition, Atiku’s attorney stated, “My Lords, we most humbly adopt the facts as presented in the supporting affidavit, and same will be referred to in the course of the argument,” stressing that the supreme court has the authority, jurisdiction, and discretion to grant an application for new or additional evidence to be presented on appeal.
Under Order 2 Rule 12 (7), (2), and (3) of the Supreme Court Rules, a party may request, upon notice of motion, that the Court receive the testimony of witnesses, regardless of whether they were called at trial, or it may order the production of any document, exhibit, or other item related to the proceedings in compliance with Section 33 of the Act. This request must be made before the date designated for the appeal’s hearing.
An affidavit outlining the facts the party is relying on to make the application as well as the type of evidence or document in question must be submitted with it.
The other party will not have to challenge the additional evidence that is planned to be presented, but if permission is granted, he will have a fair chance to present his own evidence in response, should he so choose.
“My Lords, we argue that, as this Honorable Court has established in several cases, the following conditions must be met in order for applications to present new or additional evidence to be admitted on appeal:
It must be demonstrated that obtaining the evidence sought to be admitted into evidence for use in the trial would not have been possible with due diligence.
Although it need not be decisive, the new evidence must be such that, if it were presented, it would likely have a significant impact on the case’s outcome; and
“It has to be evidence that is presumably credible, meaning it has to be believable,” stated Uche, SAN, Atiku’s attorney.
Furthermore, he argued that the court’s only obligation was to administer justice in a fair, equitable, and just manner, in accordance with the numerous judgments that the Supreme Court had already decided.
We respectfully contend that granting the current application will undoubtedly advance justice in this case.
The case involves the 2nd Respondent who was allegedly declared the winner of the election and appointed to the position of President of the Federal Republic of Nigeria. The Appellants/Applicants have contested the 2nd Respondent’s election on a number of grounds, including his eligibility to run in the election and, most notably, the fact that he submitted a forged document to the INEC.
The second respondent’s eligibility to run in the election was raised by the appellants/applicants in their appeal against the pleadings’ striking out.
“The deposition from Chicago State University, which was not made available until after the lower court’s decision on the case, is the evidence needed to demonstrate that the certificate submitted by the second respondent to the first respondent in support of his eligibility to contest the said election is genuine.
“This Honorable Court has been notified that the aforementioned evidence is now available.”
We contend that the Appellants/Applicants have effectively addressed the reasons for the delay and challenges in getting the evidence earlier rather than later, as well as the efforts made to gather the evidence and present it to this Honorable Court.
“We hereby submit that, in accordance with Section 137(1)(j) of the Constitution, a successful proof of the aforementioned allegation will disqualify the Second Respondent from contesting the election ab initio for presenting a forged certificate to the Independent National Electoral Commission (INEC), being a significant matter of constitutional importance,” Uche, SAN, continued.
According to him, the Supreme Court’s ruling in Saleh v. Abah, 2017, established that anyone found to have presented a forged certificate to INEC should be automatically disqualified from all future elections if a court or tribunal determines that the certificate was forged. This is because the Constitution states that it does not matter if the fact that the certificate was forged is further fraudulently or desperately concealed in subsequent elections or declaration forms.
“No honorable system or government ought to support, or by rulings and policies of the judiciary, foster the hazardous practice of forging certificates without consequence in order to run for office.”
According to Atiku’s team, the constitutional question that was brought up in the Tinubu case was “a weighty constitutional issue,” meaning that it was comparable to a jurisdictional issue that was so fundamental and significant that it could be brought up at any point throughout the proceedings or during an appeal.
“We beseech this esteemed court to settle this matter in the Appellants’/Applicants’ favor and approve this Application,” Atiku’s attorney continued.
The Supreme Court has not yet set a date for the motion’s hearing.