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A Senior Advocate of Nigeria (SAN), Paul Erokoro, has said the Peoples Democratic Party (PDP) presidential candidate in the 2023 election, former Vice President Atiku Abubakar, would have tough task over his fresh move to tender additional evidence at the Supreme Court.
The fresh evidence is to prove that President Bola Ahmed Tinubu submitted a forged certificate to the Independent National Electoral Commission (INEC).
The silk described the move as a herculean task that requires a great deal of effort, saying the rules admitting fresh evidence at the Supreme Court are very stringent.
Erokoro gave the hint Sunday in Abuja while speaking on the type of evidence that can be admitted at the Supreme Court.
According to him, the general rule is that additional evidence is not encouraged at the apex court.
In his words: “The general rule is that additional evidence at the Supreme Court or any Court of Appeal is not encouraged at all, but that doesn’t mean that it is totally forbidden.
“However, the rules for admitting it are very stringent. The first is that such evidence is going to be extremely material to the resolution of the issues in the case. That’s one of the hurdles to be crossed.
“The second hurdle is that such evidence could not have been procured during the trial at the trial court by reasonable diligence.
“So it is either the evidence was not available at the time of the trial or it could not, by any kind of due diligence or any reasonable effort, be made available.
“For evidence to be admissible at the Supreme Court or in any Court of Appeal, it has to, at a very minimum, satisfied those two conditions.
“The fact that the Supreme Court has only two months within which to hear the appeal will not revive the jurisdiction of the trial court.”
On grounds that an already decided case can be reviewed at the apex court, Erokoro said though the grounds are not determined by law, there are rules of trial that are universal in Nigeria.
He said: “One of them is whether due process was followed, admissible evidence rejected or inadmissible evidence admitted, if the trial court failed to act fairly to both sides, if the lower court made mistakes as regards the law to be applied, etc.
“So, there are so many possibilities that the grounds of appeal can be built around.”
Atiku’s fresh evidence
Seeking the leave of the Supreme Court to bring in fresh and additional evidence in the fresh suit, Atiku sought to tender some documents which include Tinubu’s academic records handed over to him Monday October 2, 2023, by the Chicago State University.
The 32-page document was released to the PDO standard bearer on the orders of Judge Nancy Maldonado of the District Court of Illinois, Eastern Division, Illinois, United States of America.
The US court had ordered the CSU to release the said documents to Atiku despite Tinubu’s objection.
He predicated his prayers for leave to file fresh evidence on Order 2, Rule 12(1) of the Supreme Court Rules 1985, Section 137(1) O of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended), and under the inherent jurisdiction of the Honourable Court as granted by Section 6(6)(a) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended).
The application dated October 5, but filed on October 6, specifically prayed the apex 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.”
The former VP also prayed the apex court to “receive the said deposition in evidence as exhibit in the resolution of this appeal”, as well as any such order or orders the apex court may deem fit to make in the circumstances.
The application was predicated on 20 grounds, which amongst others claimed that the “deposition sought to be adduced is, along with its accompanying documents, such as would have important effect in the resolution of this appeal”.
According to the appellant, “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.”
Filing the brief through his lead counsel, Chris Uche, SAN, Atiku reminded the Supreme Court that, “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.”
He said the original certified deposition was forwarded to the Supreme Court by a letter addressed to the Chief Registrar of the Supreme Court.
In a 20-paragraph affidavit deposed to in support of the appeal number: SC/CV/935/2023 with Petition number: CA/PEPC/05/2023, the deponent one Uyi Giwa-Osagie, a legal practitioner stated that the certificate Tinubu presented to INEC in support of his qualification to contest the presidential election, was tendered in evidence at the trial and marked as Exhibit PBDlB, and a copy of same is annexed hereto as Exhibit “E”.
Giwa-Osagie added that the same document was tendered at the aforesaid deposition in the United States of America and that at the trial, a certificate obtained from the Chicago State University was also tendered in evidence as exhibit PBE4, and a copy thereof is annexed herewith 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.”
No date has been fixed for hearing of the motion by the Supreme Court.
