By Yemi Oyeyemi, Abuja.
As the legal battle commences on Monday at the Supreme Court over the February 25 presidential election, candidate of the Peoples Democratic Party (PDP), Alhaji Atiku Abubakar, has said that nothing stops the apex court from accepting fresh evidence of forgery against President Bola Tinubu.
Atiku’s position comes as a barely known group, the Concerned Stakeholders Forum (CSF), has called for the recusal of Justice Helen Ogunwumiju and Justice Musa Dattijo Mohammed from the Supreme Court panel hearing the election dispute. The 7-member panel is tentatively composed of Justices Musa Dattijo Muhammad, Uwani Musa Abba Aji, Lawal Garba, Helen Ogunwumiju, I.N. Saulawa, Tijjani Abubakar and Emmanuel Agim.
The Forum noted that Justice Ogunwumiju, being the only female on the panel, should recuse herself due to her sons’ active involvement in the All Progressives Congress (APC). Otunba Ogunwumiju is an APC member of the Ondo House Assembly (2023-27) and Taiwo Ogunwumiju SAN is an APC lawyer at the Tribunals.
In addition to this, Justice Mohammed is due to retire on October 27th, 2023, a week’s time, when he will be 70 years old.
Meanwhile, Atiku stated his position in his reply on point of law to objections raised by the Independent National Electoral Commission (INEC), Tinubu, and the All Progressives Congress (APC) to the presentation of the documents.
The documents Atiku sought to tender are the academic records of Tinubu, which were handed to him by the Chicago State University on October 2, 2023.
The 32-page documents were released to the former Vice President on the orders of Judge Nancy Maldonado of the District Court of Illinois, Eastern Division, Illinois, United States of America.
The US court had ordered the CSU to release the said documents to Atiku despite Tinubu’s objection because the court was convinced that it would help Atiku establish his allegation of forgery and lying on oath against Tinubu, who won the February 25 presidential election.
But the respondents, in their separate replies, argued that the Supreme Court cannot at this stage accept fresh documents since the 180 days provided by law for the hearing of the petition against the February 25 presidential election has lasped.
According to them, the apex court at this stage lacked the necessary jurisdiction to receive and decide on the fresh evidence having not been presented within 180 days.
But, in his reply to the respondents, the former Vice President through his lead counsel, Chief Chris Uche (SAN) said that, contrary to the avowed position of the respondents, “there is no such constitutional limit of 180 days on the lower court to hear and determine a presidential election petition, such that can rob this Honourable Court to exercise its power in any manner whatsoever”.
According to the senior lawyer, “The parties are agreed that the Constitution is the fons et origo and the grundnorm, and supersedes any other legislation.”
Arguing further, Uche stated that while establishing the election tribunals to deal with election matters from Houses of Assembly, National Assembly and Governorship elections, the Constitution gave the jurisdiction to entertain disputes from presidential elections only to the Court of Appeal.
“Thereafter, the Constitution was intentional and deliberate in setting the 180 days limit only for Election Tribunals, and not for the Court of Appeal. On the other hand, when it came to appeals, the Constitution clearly and expressly extended same to the Court of Appeal.
“The Constitution clearly excluded Court of Appeal in the preceding subsection,” he submitted.
Furthermore, Atiku argued that a cursory look at Section 285 of the Constitution reveals that the lower court that heard his petition was not an election tribunal, adding that the framers of the Constitution limited the application of the 180 days specifically to election tribunals by virtue of section 285(6), excluding the Court of Appeal.
“On the other hand, when it came to the next subsection, namely Section 285(7), they intentionally included and mentioned Court of Appeal. The trite maxim, my Lords, is “expressio unius est exclusio alterius”, meaning that the express mention of one thing in a statutory provision automatically excludes any other which otherwise would have been included by implication.
“Furthermore, when granting jurisdiction to the Court of Appeal to entertain presidential election petitions, the Constitution did not pretend that it was conferring the jurisdiction on a “tribunal”; it clearly gave the jurisdiction to the Court of Appeal. Thus, section 239(1) of the Constitution specifically provides thus:-
“Subject to the provisions of this Constitution, the Court of Appeal shall, to the exclusion of any other court of law in Nigeria, have original jurisdiction to hear and determine any question as to whether – (a) any person has been validity elected to the office of President or Vice President under this Constitution;”
Uche also noted that when conferring on the Supreme Court the jurisdiction to entertain appeals arising from decisions in presidential election petitions, the Constitution limited itself to “Court of Appeal” and made no mention of ‘tribunal’.
He cited Section 233 subsections (1) and (2)(e)(i) of the Constitution which provides that, “The Supreme Court shall have jurisdiction, to the exclusion of any other court of law in Nigeria, to hear and determine appeals from the Court of Appeal.
“An appeal shall lie from decisions of the Court of Appeal to the Supreme Court as of right in the following cases – (e) decisions on any question – (i) whether any person has been validly elected to the office of President or Vice President under this Constitution”.
Uche revealed that it was based on the above facts that the Presidential Election Petition Court itself administratively refused to be referred to as the “Presidential Election Petition Tribunal”, but the “Presidential Election Petition Court”.
While stating that it is in fact derogatory to refer to the Court of Appeal as a tribunal, the appellants/ applicants therefore “submit that there is no constitutional limitation to rob this Honourable Court of the jurisdiction to exercise its express powers under Order 2, Rule 12 of the Supreme Court Rules 1985 to receive this vital and constitutionally important fresh evidence relating to qualification of a candidate to contest election to the exalted office of President of the Federal Republic of Nigeria”.
While Atiku on one hand is alleging that the election which produced Tinubu as President was substantially flawed and should be nullified, on the other, he is claiming Tinubu should have been disqualified from contesting the poll on grounds of alleged forgery and perjury.
Atiku emphasised that the presentation of a forged certificate to INEC in an election automatically disqualifies a candidate for all time, no matter when presented.
“That the case is not whether 2nd 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 2nd Respondent to the 1st 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”.