As Final Battle over Presidential Poll Begins at Apex Court…

One of the crucial issues before the Supreme Court is the fresh evidence of alleged forgery which the presidential candidate of the People’s Democratic Party during the 2023 election, Atiku Abubakar, has tendered against President Bola Tinubu. Will the seven wise men of the apex court take decision on it? Would they set new precedent or maintain the status quo? Alex Enumah Reports.

Since the enthronement of the Fourth Republic in 1999, all presidential elections except that of 2015 have ended up in the courts with the Supreme Court by virtue of being the final arbitar, deciding who should lead Nigerians after every election.

From 1999 to date, the apex court has decided five presidential election petitions and is about to decide the sixth few weeks or days from now. Also, of all the five cases decided; four were unanimous decisions of the court affirming the declarations of the electoral umpire. It was only in 2007, that three justices disagreed with their other four colleagues that the election was substantially flawed and should not be allowed to stand.

While aggrieved candidates over the years alleged irregularities, malpractices, non-compliance, rigging, ballot box stuffing and snatching, intimidation, violence and even killings as grounds for which the courts should nullify the victory of winners, the courts in their many decisions have argued that the petitioners failed to provide enough and convincing evidence to support their cases. Judgments of courts over time has made a lot of persons to come to the conclusion that proving electoral fraud in the courts is not just a herculean task but an impossibility, hence, politicians do everything to ensure the electoral umpire declare them winner of every election.

However, a new twist, though not really new is defining the 2023 presidential election case, and that is the issue of forgery and lying on oath that has been brought against the winner of the February 25 presidential election.

AtikuAbubakar, the presidential candidate of the People’s Democratic Partybin the 2023 poll and his counterpart from the Labour Party (LP), Mr Peter Obi, beside citing alleged non-compliance with the electoral laws, corrupt practices and irregularities among others as grounds for the nullification of President Bola Tinubu’s election, had argued that the All Progressives Congress (APC) candidate ought not to have been allowed to participate in the poll and be declared winner on account of alleged forgery and lying on oath in respect of the certificate submitted to INEC for qualification in the presidential election.

Although, the five-member panel of the Presidential Election Petition Court in their judgment of September 6, struck out paragraphs relating to the forgery allegations as well as expunged the evidence of witnesses called by the petitioners on grounds that they were not filed within the time allowed by law, Atiku however, has brought fresh and additional evidence to substantiate his allegations of forgery and lying on oath against President Tinubu.

This fresh and additional evidence, if eventually accepted and deliberated upon by the apex court, would overshadow other aspects of the appeals against the judgment of the presidential election tribunal, which affirmed the election of President Tinubu. Indeed, it would be phenomenal, because it would not only mark the first time evidence not presented at the lower court would be tendered and argued at the apex court.

According to Atiku, the alleged offence of presenting forged documents for an election is so grievous that it should not be allowed to stay. Atiku had gone all the way to the United States of America, where he fought fierce legal battles to obtain prove that the university certificate Tinubu submitted to INEC in aid of his qualification for the 2023 poll was not issued by them. Having received the said documents (Tinubu’s academic record in the Chicago State University, CSU), Atiku had sought leave of the court to present the 32 page documents. The documents were obtained from the CSU, after an order of Judge Nancy Maldonado of the District Court of Illinois, Eastern Division, Illinois, United States of America and was also attested to by CSU’s Registrar, Mr Caleb Westberg.

“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”, he said.

However, Tinubu just like he earlier objected to the release of his academic records to Atiku in the US, has also objected to the acceptance of the fresh evidence by the apex court. The president, alongside INEC and APC argued that the apex court lacked the jurisdiction to entertain the application since the 180 days for the appeal court to hear the matter has lapsed. But, Atiku in his response argued that the Court of Appeal that heard his petition was not a tribunal to be bound by the statute of limitation.

“There is no such constitutional limit of 180 days on the lower court to hear and determine a presidential election petition, such that can rob this Honourable Court to exercise its power in any manner whatsoever”, Atiku said, while referencing Section 285 of the Constitution.

In addition, he referred to Section 233 subsections (1) and (2)(e)(i) of the Constitution which provides that, “The Supreme Court shall have jurisdiction, to the exclusion of any other court of law in Nigeria, to hear and determine appeals from the Court of Appeal.

Atiku in his application pleaded with the Supreme Court to jettison technicality and grant his request to tender the fresh and additional evidence against Tinubu.

He said that, “The Supreme Court, as the apex court and indeed the Policy Court, has intervened time and again to do substantial justice in such matters of great constitutional importance… The Supreme Court applied the principle of ubi jus ibiremedium to ensure substantial justice is done in such novel scenarios”.

Also, while urging the apex court to overrule the objections of the respondents, the appellants/applicants quoted a former Justice of the Supreme Court, Bode Rhodes-Vivour, who had in a judgment held that, “Law is blind. It has no eyes. It cannot see. That explains why a statue of a woman with her eyes covered can be found in front of some High Courts. On the contrary, justice is not blind. It has many eyes, it sees, and sees very well. The aim of Courts is to do substantial justice between the parties and any technicality that rears its ugly head to defeat the cause of justice will be rebuffed by the Court.”

The question then is; would the seven wise men view the application to present fresh and additional evidence from this prism or agreed with the respondents that it lacked jurisdiction, the case is statute barred, it’s a pre-election matter that should be heard by a high court, among other objections.

Like Atiku noted, “presentation of a forged certificate to INEC 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”, adding that the grant of the 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 among 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 presented a forged document to the Independent National Electoral Commission.

“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”, he said.

He added that the Supreme Court had in the case of SalehvsAbah (2017) held that,

“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”.

Politics and election aside, it would no doubt be in the interest of the country and Nigerians, wherever they are based if the issue surrounding the certificate of the number one man in the country is finally laid to rest. And there is no other better time than now to put to rest this issue that has been in public space for over two decades.

This task rests squarely on the shoulders of the seven-man panel of the Supreme Court that would from today hear and determine the three appeals challenging the election of President Tinubu. It would be an opportunity for them to redeem Nigeria’s image and thereby write their names in gold but not just dispensing justice but making it so transparent for the ordinary citizens to see and appreciate.