*Says CSU disclaimed certificate president submitted to INEC*Urges apex court to accept new evidence
Alex Enumah in Abuja
The presidential candidate of the Peoples Democratic Party (PDP), Atiku Abubakar, has filed what he termed as fresh evidence against President Bola Tinubu at the Supreme Court.
The former vice president, who has also urged the Supreme Court to accept the new evidence, specifically sought the leave of the apex court to tender Tinubu’s academic records, which he said were handed over to him by the Chicago State University (CSU) on October 2, 2023.
In a motion, he filed through his team of lawyers led by Chief Chris Uche (SAN), the PDP presidential candidate said the evidence he is seeking to tender before the court would establish his allegations that Tinubu submitted forged documents to the Independent National Electoral Commission (INEC), in aid of his qualification to participate in the presidential election.
Atiku argued that Tinubu, by his action, committed forgery and perjury, and therefore deserved to be removed from office by the Supreme Court.
He said the 32-page document he is seeking to tender was released by the CSU on the orders of Judge Nancy Maldonado of the District Court of Illinois, Eastern Division, Illinois, United States of America.
Atiku predicated his motion for leave to file fresh 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 inherent jurisdiction of the apex court as encapsulated in Section 6(6)(a) of the 1999 Constitution.
The PDP presidential candidate prayed the court for an order granting him leave “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.”
He equally prayed for the apex court to “receive the said deposition in evidence as an exhibit in the resolution of this appeal,” and to further make orders the apex court may deem fit to make in the circumstances of the case.
The application was predicated on 20 grounds, among which included a claim that the deposition sought to be adduced along with its accompanying documents, “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 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 the same. It was not possible to obtain the said evidence before the trial at the court below.
“The deposition was made on October 3, 2023, after the conclusion of the trial at the Court below, and was not available to be tendered at the trial,” Atiku added.
Atiku, who came second after Tinubu in the presidential election, had raised allegations of irregularities, non-compliance with the electoral laws, and corrupt practices against the conduct of the poll.
The former vice president also insisted that Tinubu ought not to have contested the poll ab initio for alleged violation of Section 137 of the Nigerian Constitution, which forbids anyone who presented a forged certificate to the Independent National Electoral Commission (INEC) from participating in an election.
But his allegation of Tinubu’s alleged non-qualification was struck out by the panel of five justices of the Presidential Election Petitions Court in Abuja led by Justice Haruna Tsammani because it was filed outside the 21 days required by law.
Atiku and his party, the PDP had on September 18, filed their joint appeal at the Supreme Court against the judgment of the Presidential Election Petitions Court, which had in a judgment delivered on September 6, dismissed their petition against Tinubu’s victory for lacking in merit.
In their 35 grounds of appeal filed by their team of lawyers, the lead counsel, Uche (SAN), told the apex court that the tribunal erred in law by concluding that they did not prove their petition.
Meanwhile, before the determination of their petition, Atiku had approached a US court for an order compelling the CSU to release Tinubu’s academic records so that he could establish before the court that the diploma certificate the president presented to INEC was not genuine but forged.
Uche, in a written address filed before the Supreme Court alongside the motion for leave to file fresh/additional evidence, submitted that “a successful proof of the said allegation will render the 2nd respondent (Tinubu) unqualified to have contested the said election ab initio for presenting the forged certificate to the INEC pursuant to the provisions of Section 137(1)(j) of the Constitution, being a weighty matter of constitutional importance.”
He cited the apex court’s judgment in the case of Saleh vs Abah (2017), where it was held that: “The Constitution intends 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.”
In urging the court to grant his client leave and subsequently accept the new evidence, Uche explained that the “deposition sought to be adduced is, along with its accompanying documents, such as would have an important effect in the resolution of this appeal.”
While submitting that “a weighty constitutional issue as the one raised in this matter is 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”, Uche urged the apex court to, “resolve this issue in favour of the appellants/applicants and grant this application.”
Uche submitted that the Supreme Court, “has the power, the jurisdiction, and the discretion to grant an application for adducing fresh or additional evidence on appeal.
“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.
“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 credible,” Uche explained.
The appellants said from settled cases by the apex court, it is obvious that the only single requirement, “is the need to do justice fairly, equitably and justly.”
Though the application was dated October 5, Atiku’s legal team perfected the filing process on Friday night.
The Supreme Court has yet to fix a date for the motion to be heard.
