CAN EVIDENCE FROM THE US COURT BE TENDERED AGAINST TINUBU?

Nigerians await the final decision of the supreme court

Given the constitutional deadlines for filing an appeal or addition of appeals, TheCable contacted Festus Ogun, a constitutional lawyer, for some clarifications.

Ogun explained that even if Atiku still had time, whatever evidence or documents he gets from the US cannot be joined in the appeal pending before the supreme court.

“If Atiku files an appeal within 14 days as stipulated in the practice direction of the supreme court 2023, then that appeal has to be decided within 60 days from the day the judgment was delivered. In the calculation of the 60 days, you need not exclude weekends and public holidays,” Ogun said.

“Any evidence got by Atiku Abubakar from the court in the US is not relevant to the appeal pending at the supreme court. It is too late, even at the tribunal. Under the first schedule to the electoral act, at the point of filing your petition, you either file or list all the documents you want to rely on at trial. Even if this document is brought up within trial after issues have been joined in the pleadings, you cannot introduce new documents. Now, imagine a judgment has already been delivered. You can only submit records that are part and parcel of the tribunal.

“The supreme court is not there for trial but to evaluate the documents that had been presented at the court of appeal and to evaluate the decision of the court of appeal. So, you cannot introduce a new issue on appeal. The supreme court cannot look at any alien or extraneous document. In fact, I am very sure none of his lawyers, very senior and respected lawyers, can introduce that document any day anyhow.

“The overall essence of why the document is being sought is maybe in furtherance of public interest or maybe a strategy for the 2027 election petition; I wouldn’t understand. But I am saying without any fear of contradiction that the document sought to be got from a US court cannot be relevant to the appeal currently pending at the supreme court.”

Asked if Tinubu can be sued or his election overturned should there be discrepancies in his academic record, Ogun said the president enjoys immunity.

“As far as I know, a criminal suit cannot be filed right about now because the president enjoys immunity under section 308 of the constitution. On the other hand, I believe that there is no reason, in my view, why his academic record should be hidden, except the president has something to hide. It is a matter of public interest,” he said.

Timi Olagunju, a lawyer and policy consultant, said it is difficult for new evidence to be introduced at the apex court. He, however, held that it is not impossible.

“The challenge with appeal is that it is difficult to introduce new evidence except those are sufficient enough to prove that without them, there will be a miscarriage of justice,” Olagunju said.

Asked if it would make any difference if the documents are discovered to have been altered, he said: “In that sense, we can now talk about if the error will be considered a technical error or errors that go to the roots of the matter. Does it constitute a miscarriage of justice? It is a very difficult and dicey matter because it would have been asked if those documents were submitted at the tribunal. So, it is difficult to introduce new evidence at the supreme court.”

On the possibility of introducing new appeals, he said: “Yes, very, if the lawyer is able to prove that without the introduction of those evidence, there is going to be a miscarriage of justice and that there is an error in the judgment of the tribunal.

“But the challenge is that in the Nigerian constitution, Tinubu can run as long as he has a secondary school leaving certificate. In my opinion, if Atiku gets those documents and there are discrepancies, it is now to institute criminal proceedings, and perjury against Tinubu. But does it disqualify him from becoming president as long as he can show a secondary school certificate, no”.

As many political pundits have noted with regard to the controversy, Tinubu’s decision to forestall or prevent the release of his records leaves certain questions begging for answers —  is there a fire behind Tinubu’s academic record? If at all there is any, how big? Is it big enough to consume his political career?

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