PRESIDENT TINUBU'S CERTIFICATE AND THE CHALLENGES BEFORE THE SUPREME COURT. – By Dr. Mudiaga Odje Centre for the Advancement of the Rule of Law

 

After publicly receiving the deposition from Chicago State University (CSU), Atiku has filed the same at the Supreme Court.

Challenges Ahead

The Supreme Court is a court of appeal for judgments of the Presidential Election Petition Tribunal (PEPT) of 6th September 2023, and, as such, it is not a court for the admission of fresh evidence in election matters. The PEPT, which is the exclusive court for admitting evidence, whether old or fresh in election matters, has heard Atiku's petition and has delivered its judgment.

Throughout the hearing of his petition, Atiku never presented any documentary evidence challenging Tinubu's certificate at the PEPT. Consequently, he is apparently precluded from introducing any evidence, whether "fresh" or "old," to the Supreme Court, considering that election matters are time-bound.

The crucial question is this: even if, in the unlikely event, the deposition is admitted, what legal consequence will it have for President Tinubu's presidency? Absolutely none! The issue at stake is forgery, which is a criminal offense. Atiku must prove beyond a reasonable doubt that Tinubu forged his certificate, and this proof must be through the calling of oral evidence, not through witness depositions on oath.

The Supreme Court is not a trial court and does not take oral evidence in election matters. Atiku must call the CSU registrar as a crucial witness and be subject to cross-examination by Tinubu's counsel.

Based on the decision in 'Ikie v. Sheriff,' Atiku must also produce before the Supreme Court the real person (a female, according to him) whose identity President Tinubu allegedly stole for the said certificate.

The law is clear about the fact that there cannot be a criminal trial and conviction without first hearing oral evidence from the parties. The Supreme Court is not the venue for hearing oral evidence.

Can Atiku institute criminal proceedings against Tinubu in a regular court over this issue? Yes, Atiku could have initiated a private prosecution against Tinubu, as it is clear that the Lagos state government will never prosecute President Tinubu, even if the certificate was forged. However, following Gani Fawehinmi's efforts to obtain a fiat for the private prosecution of Ali Akilu and Togun over Dele Giwa's death in 1986, the Lagos state government has removed that right from its laws.

Even if, for academic purposes, Atiku obtains a fiat to privately prosecute Tinubu in a regular court, the question is: would it have jurisdiction to try such a matter? The constitution has granted President Tinubu immunity against any civil or criminal proceedings immediately upon his inauguration, and no writ or summons can be served on him until after the expiration of his four-year tenure. Therefore, nothing legal can be done to remove President Tinubu, even if he forged the said certificate.

Quo Vadis

The issue at stake is purely a matter of law! It is not a social media affair. The law demands proof beyond a reasonable doubt and establishes rules and procedures for the admission of evidence to prove a case. If you fail to strictly adhere to these rules, especially in an election (a time-bound matter), you will lose your case, no matter how strong it may be.

Thus, the question arises: why did Atiku not present this crucial evidence from the date Tinubu submitted his form to INEC? Why wait until after the PEPT delivered judgment?

That 'casus omissus' (or 'costly oversight') is Atiku's self-inflicted legal nemesis. Therefore, it is likely to be a quick decision from the Supreme Court.

 

Exposition by: Dr. Mudiaga Odje, SAN OFR, Centre for the Advancement of the Rule of Law.