President Bola Tinubu has picked holes in the submissions of Atiku Abubakar at the Supreme Court, with which he urged the apex court to declare that he is not fit to contest the 2023 election, having submitted forged documents to the Independent National Electoral Commission (INEC).

Atiku, former Vice President and candidate of the Peoples Democratic Party (PDP), in the election, held on February 25, is relying on the content of the deposition made by the Chicago State University (CSU) in relation to Tinubu’s academic records, to establish his case of forgery, claiming that what the former Governor of Lagos State submitted to the electoral body ahead of the election, was different from what he claimed to have obtained from the US university.

But, Tinubu’s argument through his lawyers led by Wole Olanipekun, a Senior Advocate of Nigeria (SAN), is that the Supreme Court could no longer, at this stage, assume trial jurisdiction in the case since the 180 days allocated for the hearing of election petition has lapsed and that the supposed new evidence was strange to the proceedings, having not been presented by the trial court, Atiku and the PDP, who were joint petitioners at the Presidential Election Petition Court (PEPC), did not challenge the outcome of the last presidential election on ground of forgery before the PEPC.

In Tinubu’s counter deposition at the apex court, he further argued in a written brief that court could not accept the written deposition of the Registrar of the CSU, who was not a witness before the the PEPC and whose written statement was not activated through oral evidence as required under Section 41(1) of the First Schedule to the Electoral Act 2022.

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He argued: “The mode of oral examination is provided for in paragraph 41(3) of the First Schedule to the Electoral Act, to wit: adoption of written deposition. Where a written deposition is not activated by oral examination of the deponent before the court, same will not be acted upon by a court.

“It is not in doubt that the deponent of the deposition sought to be introduced as additional evidence was not orally examined at the lower court. The appellant has not made a case for the court to override the provision of Paragraph 41(1) of the First Schedule to the Electoral Act or referred to any law permitting the use of the deposition outside the confines of Paragraph 41(1) of the 1st Schedule.

“Appellants are attempting the impossible – thus, they have not stated whether the evidence is documentary or oral evidence because it fits into neither.

He also argued that the Supreme Court no longer has the power to assume trial jurisdiction on the petition by Atiku and the PDP because the 180 days allowed by the Constitution for the hearing of election petion lapsed on September 17 in respect of this petition.

“In the circumstance, this honourable court is without the vires to consider the said deposition either as oral or documentary evidence, moreso when same was not considered by the court of first instance within the 180 days timeframe provided by the Constitution of the Federal Republic of Nigeria.

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“The case presented by Atiku and the PDP is worse than the situation in the case of Tofowomo v. Ajayi (SC/CV/1526/2022 where the apex court, in a judgment delivered on January 27, 2023, declined to invoke its power under Section 22 of the Supreme Court Act as being sought by Atiku and his party in their latest application.

“The court will note that the above decision presented more valid basis than this application for the Supreme Court’s intervention, because therein, the issues had been raised at the lower court without resolution. The situation of this application is worse because, admittedly, it relates to fresh evidence obtained after the  judgment of the lower court and the date of the filing of the motion was/is outside 180 days of the filing of  the petition.

“Admission of fresh evidence can only proceed from the combined provisions of sections 22 and 33 of the Supreme Court Act. The provisions of Order 2 Rule 12(1) of the Rules of this honourable court, pursuant to which appellants’ motion has been brought, circumscribe the receipt of fresh evidence within the circumference of section 33 of the Supreme Court Act.

“Hence, for this honourable court to be able to give effect to Section 33 of the Supreme Court Act, which is the bedrock for Order 2 Rule 12(1), the jurisdiction of the lower court must be alive. Unfortunately for the appellants, however, this jurisdiction died as far back as 17th September, 2023, upon the expiration of 180 days from the date of filing of the petition by the appellants.

“In recent times, even in very dire and pathetic situations, this honourable court has been faced with supplications from parties to consider the merit of their actions which was left unattended by the trial court after consideration of threshold issues. However, being bound by the provision of section 285(6) of the Constitution , this honourable court has consistently declined.

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“We reiterate that the new document/deposition was neither pleaded nor listed at the lower court.  Even in regular civil proceedings, the court will still be required to fall back to originating processes in assessing the extent of its powers. Five conditions/requirements must co-exist before this court can grant this type of application, as decided in a host of authorities.

“In summary, the conditions are that: the fresh evidence could aot have been obtained with reasonable diligence at trial; such evidence, if admitted would have important effect on the subject of the appeal; such evidence, er facie, is apparently capable of being believed; such evidence would have influenced the judgment of the lower court in favour of the appellants, had it been available; and if such evidence is admitted, further evidence from the opposing party will not be needed.

“Aside from the fact that there was no pleading whatsoever in the appellants’ petition before the lower court relative to the fresh evidence, which they seek to adduce, may we refer the court to paragraph 14(iii) of the counter affidavit, where the 2nd respondent had reiterated the fact that no issue was joined as between him and the appellants on this purported evidence which they seek to tender.

“This is in addition to the fundamental issue of fair hearing contained in paragraph 14 (iv) to the effect that the respondent will have no opportunity of reacting to this fresh evidence. A person who alleges that his right to fair hearing is being or likely to be breached does not need to prove any special damage.

Accusing Atiku and his party of deliberately misrepresenting facts before the Supreme Court in relation to their claim that he was not qualified to contest the election, he added: “In addition to the foregoing, is the misleading posture of the appellants, attempting to mislead the apex court in this land through Ground 1  of their application, that ‘one of the grounds of the appellants/applicants’ petition before the court below is that the 2nd respondent was not qualified at the time of the election to contest the election as required by section 137(1)(j) of the Constitution of the Federal Republic of Nigeria 1999 (as amended)’, whereas, the only ground (Ground D) of their petition relating to disqualification reads thus: ‘The 2nd respondent was, at the time of the election, not qualified to contest the election.’

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“While this application, for whatever it is worth, seeks the equitable jurisdiction of this honourable court, it is obvious that the applicants have not come with clean hands; they have come with a deceitful disposition ex facie (on the face of it). This honourable court cannot pay heed to this type of applicants, even if they had had a good cause, owing to their attitude.

Tinubu, stressed that the Supreme Court could equally not admit the deposition by the CSU’s Registrar and an additional document (marked Exhibits C and D) because the deposition was not made before a court, but in the office of Atiku’s lawyer, saying: “Exhibits C and D are not admissible in their current form. Starting from page 1 of Exhibits C, it reads: ‘This is the discovery deposition of Caleb Westerberg taken in the above titled cause before Gwendolyn Bedford, a Certified Shorthand Reporter…taken at the offices of Dechert LLP…’

“The purported deposition was made, not before a court, but before a shorthand reporter, in a law office of the 1^st appellant (Atiku’s) counsel. In essence, the appellants seek to tender as fresh evidence, before the Supreme Court of Nigeria, statements made by a third party by name Caleb Westerberg, in the presence of lawyers and a shorthand reporter , without calling him as a witness. It is at best hearsay, which is of no evidential value in the absence of the alleged deponent, Caleb Westerberg. See section 83 of the Evidence Act.

“While we are not oblivious that the procedure adopted is as prescribed by 28 U.S.C. § 1782 and the Federal Rules of Civil Procedure in the USA, we dare submit that these body of laws do not have extra-territorial application and cannot bind this honourable court, which is by no means of equal or subordinate status to the United States District Court for the Northern District of Illinois or more ridiculously, the law office of 1st appellant’s US counsel, Dechert LLP, where the deposition took place.

“There is no connection between the appeal and the documents that Atiku and the PDP went to the US to obtain and which they seek to tender before the apex court. It is our further submission that in the most unlikely event that this honourable court considers Exhibits C and D admissible, they will be of no utility or affinity to the appellants’ appeal, for several reasons, including the fact that there is no ground of appeal upon which they can be structured, as well as there being no accommodative issue for determination.

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“The law is trite that an appeal is not only a continuation of hearing, it is also circumscribed by matters heard and determined at the trial court. Thus, the Supreme Court cannot exercise any jurisdiction that the Court of Appeal is incapable of exercising.

“We refer your Lordships to the brief of argument filed by the appellants, and submit that no issue for determination thereof, can accommodate Exhibits C and D, yet, appeals are decided on issues for determination, which must be predicated on the grounds of appeal. None of the seven issues for determination presented by the appellants has any proximity to the disqualification of the respondents on the ground of forgery of any certificate whatsoever.

“Equally, there is no relief in the petition, seeking the disqualification of the respondent on the ground of forgery.”

Citing the Supreme Court’s earlier judgment in that case Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156 at 188, Tinubu submitted that the latest application by Atiku and the PDP “is meant to harass, irritate and annoy the respondent (Tinubu),” adding that “it is reckless and frivolous, and there is no iota of law supporting it.

He said: “From the foregoing, it is safe to submit that this application is a crass abuse of the processes of this honourable court. Arising from the foregoing, we urge the Supreme Court to resolve the sole issue formulated in this address against the appellants/applicants and in favour of the respondent. In conclusion, and for the reasons and arguments advanced in this address, we urge the Supreme Court to dismiss this application.”

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