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What Atiku told Supreme Court about Tinubu’s Chicago records (part 2)

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Following the deposition made by Caleb Westberg on behalf of Chicago State University (CSU) on October 03, 2023, disclaiming the certificate presented by President Bola Ahmed Tinubu to the Independent National Electoral Commission (INEC), Alhaji Abubakar Atiku and his Peoples Democratic Party (PDP), Appellants/Applicants, has approached the Supreme Court of Nigeria holden at Abuja.

The Appellants/Applicants filed a motion in appeal no: SC/CV/935/2023 and petition no: CA/PEPC/05/2023, against the Independent National Electoral Commission (INEC), Tinubu Bola Ahmed and the All Progressives Congress (APC), Respondents.

The Appellants/Applicants, through their Counsel, prayed the Court for an order granting leave to produce and for the Court to receive fresh and/or additional evidence by way of deposition on oath from Chicago State University for use in their appeal.

In their “Written Address In Support Of Motion“, the Applicants stated:

1.2 The application is brought pursuant to Order 2, Rule 12(1) of the Supreme Court Rules 1985, Section 137(1) (j) 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).

1.3 The application is supported by a 20-paragraph affidavit deposed to by Mr. Uyi Giwa-Osagie on behalf of the Appellants/Applicants. Attached to the Affidavit are relevant documents marked as Exhibits. The Applicants are relying on the Record of Appeal already transmitted and in the well of this Honourable Court. which the Honourable Court is entitled to look at. See APC V. ENWEREM & ORS (2022) LPELR-57816(SC); EZE & ORS V. GOV OF ABTA STATE & ORS (2014) LPELR-23276(SC).

2.0 STATEMENT OF FACTS:

2.1 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.

3.0 ISSUE FOR DETERMINATION: We humbly submit that the issue for determination in this Application is as follows:

Whether this Honourable Court ought to exercise its discretion in favour of the Appellants/Applicants by granting the prayers sought.

3.1 LEGAL ARGUMENT:

3.2 We humbly submit that this Honourable Court has the power, the jurisdiction and the discretion to grant an application for adducing fresh or additional evidence on appeal.

3.3 Order 2 Rule 12 (1), (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.

(2) The application shall be supported by affidavit of the facts on which the party relies for making it and of the nature of the evidence or the document concerned.

(3) It shall not be necessary for the other party to answer 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.”

3.4 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:

(a). 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.

(b). 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,

(c). The evidence must be such as is presumably to be believed, in other words it must be apparently credible.

3.5 In the case of UZODINMA vs. IZUNASO (2011) 17 NWLR (Pt. 1275) 30, ® 53 para G — H, the Supreme Court considered a similar application for leave to adduce additional evidence on appeal, and noted as follows:

“Learned counsel for the Appellant, Chief W. Olanipekun SAN observed that trial took just three days and judgment was delivered on 28/1/2011, he thus had very little time to assemble relevant documentary evidence, including exhibit HU2. He further observed that it was on 7/4/11 that he obtained from the PDP Secretariat the extract of the MK’ meeting of 5/1/2011 – exhibit HU2. He submitted that the documentary evidence (exhibit HU2) is clear and unambiguous and no further evidence is to be adduced on it.”

3.6 The Court in granting the application as prayed, held as follows at page 55 paragraphs B — C thereof:

“The discretion to grant leave to admit new evidence, fresh evidence or additional evidence is properly exercised if it is for the furtherance of justice. Judges must exercise that power sparingly and with caution. This is so because granting the application could amount to allowing the applicant to reopen his case or present a new case. The application should be granted if the applicant is able to satisfy the court that it was extremely difficult or not possible to obtain the evidence before trial and it is in the interest of justice that the said evidence is led.”

3.7 Not too long ago, the Supreme Court in the case of NIGERIA CUSTOMS SERVICE BOARD & ANOR v. INNOSON NIGERIA LIMITED & ORS (2022) 6 NWLR (Pt. 1825) page 82 at 98; (2022) LPELR-56659(SC) per Abubakar JSC, while allowing an application for leave to adduce fresh evidence, held as follows:

“Similarly, this Court in ADEGBITE & ANOR V. AMOSU (2016) LPELR-40655 (SC) held as follows: “Thus, documents not tendered at the trial Court due to inadvertence of counsel, can be tendered on appeal as fresh evidence in the interest of justice. See: Jadesimi v. Okotie-Eboh (1986) 1 NWLR (Pt.16) 264. Further, in Adeleke v. Aserifa (supra). The law was restated by Karibi-Whyte in his contribution in the above case as follows: “Hence where evidence is available and could with reasonable care and diligence be made available to the applicant at the time of the trial, as in the instant case, the Court of Appeal will refuse to exercise its discretion to receive such evidence.

“However, if applicant referred to the document in his pleadings or evidence but did not tender it, the appellate Court can admit it. See Latino v. Ajao (1973) 2 SC 99. See also; ELUGBE V. OMOKHAFE (2004) 18 NWLR (Pt 905) 319; OLALOMI LAD. LTD. V. NIDB LTD. (2009) 16 NWLR (Pt.I167) 266; TIAMIYU OLAOGUN (2008) 17 NWLR (Pt.1115) 86. Front the applicant’s supporting affidavit, the evidence sought to be adduced is the payment of the sum of N700,220,000.00 to the 2nd Respondent as full and final payment of the entire judgment debt after making of the decision of the trial Court in the garnishee proceedings. From the record, the said evidence was not in existence at the time the proceedings in the trial Court took place.”

“From the authority cited herein, this Court is empowered to allow an applicant raise fresh points on appeal where refusal to allow the new points will occasion miscarriage of justice It is obvious front the materials before us that the Respondent herein obtained Judgment of the lower Court concealing material facts, and the fads alleged by the applicant are such that may have the effect of swinging the decision of this Court one way or the other, the issues sought to be raised are therefore fundamental, justice of this case therefore demands that the application be granted as prayed.”

3.8 Also, in DIKE-OGU VS AMADI (2020) 1 NWLR PART 1704, p 45@ 65, the Supreme Court held as follows:

“Allowing fresh evidence to be adduced in this appeal by a requesting or desiring party is not the exclusive preserve of the applicants. The respondents may as well have taken benefit by applying to adduce any such fresh but relevant evidence. Whichever way one looks at it, what should be paramount in the mind of the court is whether permitting fresh evidence to be adduced will be in furtherance of the course of justice to the extent that it would assist the court to resolve the issue before it fairly, justly and equitably.”

3.9 We submit that discernable from the above decisions is one single requirement, that is the need to do justice fairly, equitably and justly.

3.10 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 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.

3.11 The evidence required to establish that the certificate presented by the 2s Respondent to the I” 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.

3.12 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.

3.13 We submit that a successful proof of the said allegation will render the 2s Respondent unqualified to have contested the said election ab initio for presentation of forced 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. The Supreme Court had the opportunity in the case of SALEH vs ABAH & ORS (2017) LPELR-41914(SC) page 1 at 28 to declare in respect of such situations as follows:

“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.”

3.14 We submit 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.

4.0 CONCLUSION:

4.1 In the light of the foregoing argument, we most respectfully urge the Honourable Court to resolve this issue in favour of the Appellants/Applicants and grant this Application.

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