The team of legal counsels representing Atiku Abubakar had a tough time yesterday trying to convince the Supreme Court as to why they should be allowed to tender fresh evidence.
Hearing commence yesterday into the appeal by Atiku and the Peoples Democratic Party (PDP) challenging the affirmation of President Bola Ahmed Tinubu’s victory in the February 25 elections.
The court has meanwhile reserved judgment in the appeal, as well as Peter Obi and Labour Party (LP)’s appeal too.
Atiku and Obi are challenging the September 6 judgment of the Presidential Election Petition Court (PEPC).
Counsel for Atiku and the PDP, Chris Uche (SAN), said the motion was for leave to present fresh evidence based on a deposition on oath from the Registrar of the Chicago State University (CSU), United States.
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Uche said: “It is our contention that the issue involved is a weighty and constitutional one.”
He added that the Supreme Court, as the custodian of the Constitution, should admit the documents in view of the exceptional circumstance that have arisen.
Uche argued that the only opposition raised by the respondents against the motion was technical.
He said the respondents’ objection was that the fresh documents were not properly pleaded and that they were being introduced late into the proceedings.
“We argue that this matter is akin to a jurisdictional issue; that the court, as a policy court, should have a look at these documents.
“It should sidestep technicalities and do substantial justice in this matter,” Uche said.
At that point, Justice John Okoro, who heads the court’s seven-member panel, asked Uche whether the court should be guided by the Constitution and the Electoral Act or that it should act arbitrarily.
Uche said: “We have argued that this court is allowed under the Constitution and the Electoral Act and that it can still allow these documents.”
Another member of the panel, Justice Emmanuel Agim, sought to know from Uche the nature of the documents.
Uche responded by saying: “It is a deposition of a witness made pursuant to a court order.”
Justice Agim noted that the deposition, which is that of the Registrar of the CSU, Caleb Westberg, seemed like a product of a question-and-answer session.
He observed that the proceeding leading to the creation of the document was conducted in the chamber of Atiku’s lawyer in the United States.
Uche said the proceeding took place in Atiku’s lawyer’s office in compliance with the order of a US court, to which Justice Agim noted that the said order did not specify when it must take place.
The justice added that the deposition, which is a testimony by the CSU’s Registrar under oath, cannot qualify as a court document because it was not a product of a court proceeding.
He wondered why Atiku and the PDP chose to have the proceeding conducted in the office of Atiku’s lawyer.
The justice said he had expected the CSU write to disclaim the documents supplied by Tinubu to INEC instead of a deposition by the Registrar.
He queried whether the stenographer in Atiku’s lawyer’s office, who administered the oath on the CSU’s Registrar, had the legal authority to administer such an oath.
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“We are dealing with a matter that touches on the national interest of this country,” Justice Agim said.
He added that the procedure adopted by the appellants did not appear tidy.
Uche said there was nothing unusual about the venue of the proceeding, noting that Tinubu’s lawyer was present and did not question the process.
He added that the legal system in the US was different from that of the Commonwealth, which Nigeria adopted, admitting that the deposition was made in the law chambers of Atiku’s American lawyer.
Uche said the deposition was based on a court order to clarify the discrepancies observed in the communications from the CSU.
He stressed that the deposition confirmed that the certificate submitted to INEC by the second respondent did not emanate from them.
Justice Okoro noted that there were two conflicting letters from the CSU on the allegation of forgery – a criminal act that ought to be proved beyond reasonable doubt.
The jurist wondered whether the Supreme Court has the luxury to entertain such a proceeding, particularly in the face of Section 285(6) of the Constitution, which imposes a 180-day limit on election petitions.
Uche said: “Our contention is that the court should proceed in line with the Constitution, particularly Section 285 from sub-section 1 to 6.”
The SAN argued that the Constitution does not refer to the Court of Appeal as a tribunal, which is affected by time limitations.
He added that the 180-day timeline cannot apply to the Court of Appeal, but only to an election tribunal.
Olanipekun: deposition lifeless
Chief Wole Olanipekun (SAN), who led Tinubu’s legal team, faulted Uche’s submissions.
Olanipekun argued that as it stands, the deposition is a lifeless document on which the court cannot act.
To him, it is like a statement that requires the presence of the witness in court to breathe life into it by adopting it and being cross-examined.
Olanipekun noted that parties before the US court were different, as INEC and the APC were not represented.
He also faulted Uche’s contention that the 180-day limitation cannot apply to the Court of Appeal.
The SAN cited Section 285(13) of the Constitution and the First Schedule to the Electoral Act to support his argument that the time limit applies to the Court of Appeal sitting as a trial court in a presidential election dispute.
Olanipekun argued that it is petitions that are filed at the Court of Appeal over presidential election disputes and not appeals.
He picked from his table and showed the Justices a copy of the petition that Atiku and the PDP filed before the Court of Appeal sitting as the Presidential Election Petition Court (PEPC).
Referring to an earlier decision of the Supreme Court in Obaseki vs. the APC, he noted that the court held that it is only the issuing institution that can confirm or deny the authenticity of a certificate.
Olanipekun added: “The 180 days is sancrosant. It cannot be extended. We are bound by the law. The law is to be interpreted as is it and not how it ought to be.”
He urged the court “to dismiss this very unusual application.”
Counsel for INEC and the APC – Abubakar Mahmoud (SAN) and Akin Olujinmi (SAN) – described the motion by Atiku and the PDP as novel, misconceived and misdirected.
Mahmoud said the time limitation provision in Section 285 applies to the Court of Appeal as it is to the election tribunal and urged the court to dismiss the motion.
Olujinmi, who adopted the submission by Olanipekun, also urged the court to dismiss the motion on the grounds that Atiku and the PDP did not comply with the provision of the applicable Rules of the Federal High Court in applying for foreign documents.
“When a party to a proceeding want to apply for foreign documents, there ought to be an order of the court hearing the matter, such was not done in this case,” Olujinmi said.
The court did not allow adumbrations in the main appeal.
Counsel simply adopted their written briefs and prayed the court to either allow or dismiss the appeal.
Uche urged the court to allow the appeal, set aside the judgment of the lower court, grant the prayers and disqualify the second respondent.
Olanipekun, Mahmoud and Olujinmi urged the court to dismiss the appeal.
Justice Okoro announced that judgment was reserved.
