CSU: Atiku asks Supreme Court to reject technicality, overrule Tinubu on fresh evidence

•Says Tinubu’s NYSC certificate bears Bola Adekunle

From Godwin Tsa, Abuja

Former vice president, Atiku Abubakar, has urged the Supreme Court not to sacrifice substantial justice on the altar of technicalities by granting his request to put forward fresh and additional evidence in support of his claim that President Bola Tinubu submitted forged documents to the Independent National Electoral Commission (INEC) to aid his qualification for the February 25 presidential election.

The Peoples Democratic Party (PDP) presidential candidate told the apex court that presenting forged documents by any candidate, especially a candidate for the highest office in the land, is a grave constitutional issue that must not be encouraged.

Atiku’s position is contained in his reply on point of law to Tinubu’s objection to grant leave to Atiku to present the fresh evidence before the apex court.

Tinubu had predicated his objection on grounds of jurisdiction, and that the issue of qualification is a pre-election matter among others, and subsequently prayed the court to thrash the application.

But, in his reply on point of law, Atiku, while faulting Tinubu, submitted that issues of merit ought not to be determined or pronounced upon at the interlocutory stage.

The appellants/applicants, while noting that they were only at this stage merely applying for leave of the Supreme Court to receive the fresh evidence, submitted that to refuse to grant the leave as the respondents have argued would amount to undue technicality.

“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, as it did in the case of Amaechi Vs INEC (2008) 5 NWLR (Pt. 1080) 227 and OBI vs. INEC (2007) 11 NWLR (Pt. 1046) 565. The Supreme Court applied the principle of ubi jus ibi remedium to ensure substantial justice is done in such novel scenarios.

“The need to rebuff, eschew and reject technicality, and the duty of the court to ensure substantial justice is very germane in this matter, given the gravity of the constitutional issue involved in deciding whether a candidate for the highest office in the land, the office of President of the country, presented a forged certificate or not.

“In urging the Court to overrule the objections of the respondents, we can do no better than to commend to your noble Lordships the insightful words of the Supreme Court in ASSAH & ORS V. KARA & ORS (2014) LPELR-24212(SC), per Rhodes-Vivour, JSC as follows: 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 the 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.”

Meanwhile, in a 20-paragraph affidavit deposed to in support of the application, Atiku argued that if the apex court grants the application, there would be no need for “any further argument other than the written address in support of the same, showing that the second respondent is in violation of the provisions of Section 137 (1) (j) of the Constitution by presenting a certificate disclaimed by the institution from where he purportedly procured same.

“That contrary to paragraphs 16(xi) of the second respondent’s counter-affidavit, there was no ex parte communication with the Court, but the letter was forwarded to the Registrar of the Court just as was done in the case of Uzodimma vs. Izunaso (2011) 17 NWLR (Pt. 1275) 30, at 56 (Paragraph H of the affidavit on page 56), in which counsel for the second respondent and Counsel for the appellants/applicants were both involved.”

The deponent, Mr. Uyi Giwa-Osagie, further argued that Tinubu’s objection was baseless because he was represented both at the discovery and the depositions as well as at the court hearing by his Chicago Attorneys, and the second respondent never challenged the issue of venue of the discovery and deposition.

“That the presence of the first and third respondents at the discovery and deposition was not necessary.

“That I know that the second respondent’s appeal was to prevent the discovery and deposition, and that the said appeal failed.

“That I know as a fact that the discovery and deposition were ordered by the District Judge, and was not out-of-court.

“That the appellants were not indolent in their pursuit of the discoveries and deposition, as it was also the letter tendered as exhibit XX2 by the second respondent in the course of his defence purportedly issued by Caleb Westerberg that clearly gave the appellants/applicants further reasons to build on the evidence of PW27 by the discovery proceedings for the documents and deposition on oath of the same Caleb Westerberg.

“That the process for the discovery and deposition was commenced by the appellants/applicants with several initial preliminary processes by their US attorneys, culminating in their eventual filing of a petition for the issuance of subpoena, a copy of which is annexed herewith as exhibit “K.”

“That the process was severely stalled by the vehement opposition of the second respondent, and citing irreparable damage to him, among other excuses, and I annex herewith, as exhibit “L” the motion of the second respondent to quash the subpoena, which application failed.

“That the process was also further delayed by a motion to join or intervene as filed by the second respondent, which was granted, a copy of which application is annexed herewith as exhibit “M”.

“That eventually, the subpoena was ordered, and annex herewith a copy of the subpoena along with the documents that accompanied it as exhibit “N.”

“That the second respondent has been in primary possession of all the facts sought in the discovery, but took every step to block their release, notwithstanding that the second respondent had equally applied through his attorney in the United States, Mr. Wole Afolabi, for the release of the said documents, which were released to him as shown is exhibit “P” presented in the course of the discovery and deposition process.

“That I know as a fact that the appellants are in this appeal challenging the rulings of the lower court striking out certain paragraphs of their petition as well as their replies dealing with aspects of qualifications of the second respondent.”

Meanwhile, Atiku faulted Tinubu’s submission that he was inconsistent in his names, describing the submission as immaterial and pedestrian, as there is no petition challenging his qualification.

“That it is immaterial that the first respondent had since June 24, 2022, published the fictitious credentials of the second respondent as presentation of a forged certificate by a candidate for election to the office of President of the Federal Republic of Nigeria is a post-election matter under Section 137 (1) (j) of the Constitution.”

Besides, Atiku pointed out that the presentation of a forged certificate disqualifies a candidate for all time, no matter when presented.

“That the case is not whether the second respondent attended Chicago State University, but whether he presented a forged certificate to the Independent National Electoral Commission (INEC).

“That at the trial, a National Youth Service Corps certificate with serial number 173807 presented by the second respondent to the first respondent was equally tendered by the appellants/applicants at the trial as “ exhibit PBD 1A” with the name, Tinubu Bola Adekunle, which is annexed herewith as exhibit “J”.

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