The Supreme Court’s recent judgment affirming Bola Tinubu as Nigeria’s president has raised important questions about the implications for future election litigations.
In a unanimous decision, the seven-man panel of the apex court chaired by Justice Inyang Okoro dismissed the appeals filed by Atiku Abubakar of the People’s Democratic Party (PDP) and Peter Obi of the Labour Party, citing lack of merit, vexatiousness, and frivolity.
Specifically, the Supreme Court held that Atiku’s request to bring in fresh evidence (Chicago State University academic records of Tinubu) was time-barred.
It also held that the collation agents fielded by Atiku and Obi in respect of alleged suppression of votes across disputed polling units presented hearsay evidence.
Lawyers who spoke to THE WHISTLER have expressed mixed reactions to the judgment.
Some have argued that the Supreme Court’s decision on fresh evidence and hearsay evidence will make it more difficult for petitioners in future election litigations to succeed.
Others have defended the court’s decision, arguing that it is in line with the law and that it will help to ensure that election petitions are resolved expeditiously.
A former Chairman of the Section of Public Interest and Development Law (SPIDEL), Nigerian Bar Association, Monday O. Ubani, told THE WHISTLER that the appellants obviously failed to prove their cases as observed by the Supreme Court.
“That is the judgment of the Supreme Court, they have looked at the appeals and were convinced that, one, the issue of fresh evidence at this point may not be feasible because the 180 days that you have to file your petition has elapsed.
“And then the allegations of drug forfeiture as conviction traceable to Tinubu was not proved,” Ubani said.
Asked to comment on the Supreme Court’s position on the appellants’ witnesses presented hearsay evidence, Ubani said under the new Electrical Act 2022, there was an innovative provision of Section 137 that states if one presents either original or certified true copies of electoral documents and the allegation is on issue of non compliance with electoral laws, the court is bound to look at those documents so one does not need to produce eye
“Those documents should be able to be looked into and spoken to and so, a lot of lawyers were thinking that with these amendments in the Electoral Act, we are not going back again to the old practice of having to invite all the witnesses at the polling units to come and give evidence.
“That you can now give evidence through a collation agent who will now tender all the documents of the polling units results,” Ubani added.
But the public interest lawyer said with the judgment of the Supreme Court, a heavy burden is still on petitioners to produce polling unit agents to prove allegations of irregularities in polling units or elections.
“And you know how many polling units we have in this country. So how would you, if you are alleging irregularities in the various states, succeed based on the burden that is placed on the petitioner?” Ubani queried, adding that Atiku and Obi’s lawyers must have been aware of the relevant laws but felt that with the new Act, “we may have obliviated the need to bring witnesses in all the polling units.”
He added, “But with the judgment now, it then means that it is still important for you to bring all your witnesses from the various polling units, especially if you alleged irregularities and it’s a heavy burden.”
Tunde Falola, a lawyer, shared a similar view with the former NBA SPIDEL chairman, saying he was not in a position to condemn a counsel that participated in the case, however, the way cases appear to lawyers depend on their individual background.
“What I see in a case, another lawyer may not see it,” Falola told THE WHISTLER in an interview.
He said lawyers may not opt to use collation agents and documents to establish their case because the position of Section 137 of the Electoral Act states that if irregularities are so glaring on the face of a document like in polling unit results, it may not be necessary to call oral evidence.
However, Falola said that in a previous decision of the Supreme Court involving Oyetola and Adeleke, it held that the fact that Section 137 of the Electoral Act says one does not need to call oral evidence still does not mean that “you don’t need to lead credible evidence”.
He said, “What the Supreme Court has just said now is that they have resolved the issue that regardless of Section 137, a petitioner still needs to bring credible evidence.
“I’m not saying they (Atiku,Obi lawyers) don’t know what they are saying and I cannot even say that. It depends on how the case appeared to them when they were preparing for their matter,” Falola said.
Speaking further, Falola said the verdict of the apex court cannot be faulted especially when it held there was no mention of forgery by Atiku in his petition.
On the move by Atiku’s legal team to bring in fresh evidence at the Supreme Court, he said the court held that such foreign documents must have authentication of the issuing authority, which is not the case in Atiku’s move to bring in new evidence.
On his part, constitutional lawyer, Festus Ogwuche, held a divergent view on the matter.
Ogwuche said the issue of Tinubu’s academic records was allegedly a criminal and constitutional matter that was not time bound.
“Are we looking at the time or are we looking at the relevance of that document (from Chicago State University)? Does it touch on a constitutional matter? It’s even a criminal matter. Does time run a criminal proceedings?,” Ogwuche queried.
He said one does not have to mention forgery when filing certificates as evidence, adding that a document should speak for itself.
“If you are forging an international passport, are you going to write forgery in the passport? It is the facts on the documents that speaks for itself,” said Ogwuche.