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Atiku’s futile hunt for ‘after-discovered evidence’

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Atiku’s futile hunt for ‘after-discovered evidence’

Atiku Abubakar

Published By: PM NEWS Editor

By Lawal Ogienagbon/The Nation

FOR Atiku Abubakar, the standard-bearer of the Peoples Democratic Party (PDP), nothing will satisfy him more than to unseat President Bola Tinubu either by hook or by crook. His desperation for the plum job drove him all the way to the United States (US) to fish for evidence even after the Presidential Election Petitions Court (PEPC) had concluded sitting and reserved judgment. Despite the tribunal’s September 6 verdict, which threw out his case for lack of merit, he intensified his search for his so-called evidence which, he believes, would make the Supreme Court to reopen the case.

The Supreme Court is not a court of first instance. It only adjudicates on disputes between individuals and organisations after the cases must have gone through the high and appeal courts. There is nothing special in the Atiku case to make the Supreme Court call for the retrial of his petition against Tinubu’s election. At the PEPC, he challenged the President’s election on four grounds, viz:

· The election of the second respondent (Tinubu) is invalid by reason of non-compliance with the provisions of the Electoral Act
· The election of the second respondent is invalid by reason of corrupt practices
· The second respondent was not duly elected by majority of lawful votes cast at the election
· The second respondent was, at the time of the election, not qualified to contest the election

Interestingly, the petitioner supplied particulars for the first three legs of his petition, but failed to do so for the fourth. In election cases, petitioners are not allowed to ambush the other side. They must put everything on the table. This is called frontloading so that the respondents will know what they are going to face. Election cases are special. In law, they are known as sui generis (of its own kind). They have their own rules and practice direction which must not be deviated from. Any departure from its rules is usually fatal to the petitioner’s case.

Atiku slept on his right by his failure to show proof of Tinubu’s non-qualification. He then tried to catch the President and the other respondents unawares by calling a witness, Mike Enahoro-Ebah, who had earlier sought to stop Tinubu from contesting the February 25 election. Ebah’s case was thrown out by an Abuja Federal High Court some months before the election. He became Atiku’s star witness at the tribunal.

The main thrust of Ebah’s testimony from which Atiku might have got the idea of his fishing expedition was that the President identified himself as a female when he sought admission into the Chicago State University (CSU) in 1977. He claimed that the President forwarded a transcript of the South West College in the US under the name: ‘Bola Adekunle Tinubu’ and identified himself as female. The CSU debunked Ebah’s claim which Atiku is holding on to, in a deposition by its Registrar, Caleb Westberg. In the deposition, which was at the instance of Atiku whose lawyer, Angela Liu, questioned Westberg, the registrar said the university’s record identified Tinubu as male and that his admission letter bore the suffix: Mr.

Tinubu’s lawyers wasted no time in demanding that the ground of non-qualification be struck out since no particulars and facts were provided. But the petitioner insisted on its retention, and brought in fresh documents to support the claim. The documents related to the President’s alleged conviction in the US and dual citizenship. Upholding the respondent’s preliminary objection, the PEPC said ‘’the petitioner’s attempt to supply fresh particulars in support of Tinubu’s non-qualification was an attempt to modify or amend the petition, contrary to paragraph 16 (1) (b) of the First Schedule to the Electoral Act… No details whatsoever was given by them of what they meant by second respondent’s non-qualification, so the first respondent (INEC), which was obviously satisfied that the second respondent was qualified to contest the election by the documents he presented to it, also simply joined issues with them in a similar general manner.

‘’It is now through their reply that the petitioner who himself seemed to have had no clear idea of what he meant by second respondent’s non –qualification for the election or simply deliberately kept it back when filing the petition, want to now introduce through their reply at a time when respondents have no further right of responding to them. Such unfair tactics cannot be, and is not, allowed by our law. It must be noted, too, that under Section 131 of the 1999 Constitution of this country, there are as many as four different qualifications a person must possess before he can contest presidential election and another 10 different grounds that can disqualify such a candidate who has all the four qualifications of Section 131.

‘’Therefore, an assertion that merely says that a person is not qualified to contest election by reason of non-qualification, will leave not just the person assailed but put every other person involved, including the court at a loss as to what the pleader has in mind… Still on this issue, I must also not fail to point out that the petitioner was only being clever by half when he claimed in paragraph 2.1 (b) of the reply that he was simply giving, as he puts it, ‘further details’ of the non-qualification of second respondent by averring to the conviction, fine, certificate forgery and dual citizenship of the second respondent that was raised in the reply. He had never given any details of second respondent’s non-qualification and so cannot talk about ‘further details’ let alone hide under such ‘further’ details to smuggle in the new facts they averred in paragraphs 1.2 (i), (ii), (iii), (iv), (v) and 2.1 (b) of the reply.

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‘’These new allegations of the petitioners are not mere ‘evidence’ in support of the ground of the second respondent’s non-qualification as his counsel also tried to make them. They are facts which can only be contained in the petition itself and not in a petitioner’s reply to the respondent’s defence to the petition’’. Consequently, the tribunal struck out the two witness statements made by Ebah and the documents accompanying the reply ‘’all of which were based on the new facts contained in the impugned paragraphs of the reply in issue’’.

The PEPC, in deciding the petition on its merit, expunged Ebah’s testimony from its record, declaring that it was bereft of pleadings to sustain it. The law, it is said, does not help the indolent. The petitioner paid for his indolence, yet, it seems he has not learnt any lesson from the verdict. Where will the voyage of discovery to Chicago take Atiku? Is he on a wild goose chase? Atiku believes something good will come out of the fishing expedition as he tries to force the hand of the Supreme Court to reopen the case based on what he believes is ‘’after-discovered evidence’’. Has Atiku and his lawyers made any ‘after-discovered evidence’ that can make the Supreme Court rule in his favour? How different is this earthshaking ‘after-discovered evidence’ from what he tendered at PEPC, which was expunged by the tribunal?

At this stage of the case, what is left for the Supreme Court is to consider what the PEPC did, based on the record of proceedings and not on any other extraneous factor that any of the parties may introduce. All that Atiku is seeking to do now, he ought to have done while filing his petition as stated in the PEPC decision. For election cases, according to an essay: ‘An overview of forgery and perjury under the Electoral Act 2022’, written by a lawyer, Olanrewaju Lawal, ‘’the common law concept of forgery and perjury has been technically replaced by the statutory concept of electoral perjury, as contained in Section 29 (5) and (6) and punishable under (8) of the Act’’.

Lawal noted that raising forgery or perjury as a ground to disqualify a candidate could be a pre- or post-election matter, citing Sections 29 and 134 to back his claim. He argued that for a candidate to be disqualified from contesting, the mens rea (the intention to beat the constitutional requirement) must be established. ‘’Put differently, the electoral law says that before a candidate can be guilty of forgery or perjury in electoral matters, that person must have made false declarations or forged the documents with the intention to meet the constitutional requirements relating to his qualification… forgery or perjury in electoral matters must be for electoral purposes and are not entirely the same under the general criminal law’’.

According to him, the Supreme Court held in Saleh v Abah that: ‘’Forgery of certificates for the purpose of election and electoral process and forgery under criminal law are not the same issues. Forgery under the Electoral Act is a specific law on forgery or presentation of a forged certificate for the purpose of election…’’

The so-called after-discovered evidence that Atiku wants to bring may be dead on arrival because it is not different from what he sought to tender at the PEPC, which was rejected. A Senior Advocate of Nigeria (SAN), Rotimi Jacobs, said the CSU documents Atiku got would only be relevant if they contained any evidence contrary to what had earlier been presented by the President’s lawyers. ‘’There are factors; there are guidelines in which fresh evidence can be revealed on appeal. It must be evidence that is not available at the time you pursued the case at the lower court. May be something that came ex-improviso, after the proceedings. So, you don’t admit fresh evidence on appeal. And from what I have read, I do not think the documents can be of any help to them’’. For an appellant to call evidence ex-improviso, he must be able to prove that no human ingenuity could have foreseen the need for it. Is that the case with the Atiku appeal?

According to a law school report, ‘after-discovered evidence’ is an issue mainly in criminal cases and can only be adduced where (a) it could not have been obtained prior to the conclusion of the trial by the exercise of due diligence (b) it is not mere corroborative or cumulative (c) it will not be used solely to impeach the credibility of a witness and (d) it would likely result in a different verdict or lighter sentence if a new trial is granted. Atiku’s case does not stand a chance of having the benefit of any of these factors. In the US, schools do not place emphasis on diplomas. A graduate can get his diploma through a vendor if he so desires. Since there are many vendors, the diplomas too will be different.

Moreover, the President has a diploma duly isuued by CSU, as contained in an affidavit deposed to by Westberg on July 24. The affidavit came before his deposition by Atiku’s lawyer three days ago. In the affidavit, Westberg averred that CSU provided Tinubu a diploma and subsequently a certified (or official) copy of the diploma. ‘’Both are valid and authentic diplomas of CSU. There are certain differences between the diploma and the certified copy because all diplomas are signed by the current president/board chair. There are also differences in the font and seal on the diploma versus the certified copy because the university updated its font and seal after the diploma was issued. The difference in the date of award on the diploma versus the certified copy is likely the result of human error. The graduation date on the certified copy is typed in by a person and can be inaccurate. In the United States of America (USA), institutions of higher education often consider the diploma to be a ceremonial document’’, Castberg swore.

Atiku has filed 35 grounds of appeal at the Supreme Court. In the circumstance, as a democrat, he should wait for the apex court to determine the matter. But, he is overheating the polity with what some political watchers described as inciting statements. At a press briefing in Abuja yesterday, he called on Peter Obi of Labour Party, Rabiu Kwankwaso of the New Nigerian Political Party and other leaders to join him in his ‘crusade’. He said he owed the President nothing, claiming that it ‘’is the President that owes me’’. He claimed to have stopped PDP from taking over Lagos in 2007. Atiku, analysts said last night, was being economical with the truth. They recalled that the President backed him against the late President Umoru Yar’Adua in 2007 and also supported him in 2011.

Atiku also spoke of the loss of his company, Intels, under the Buhari administration, portraying him as a bitter person.

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