By Tohwo Oseruvwoja, Esq.

Before the 9th September 2023, Nigerians exhibited a key interest in the would-be outcome of the Presidential Election Petition Court Judgment, as players and supporters of all the political parties in the legal arena had, indirectly sorted the Court of Public Opinion where their various written addresses where in the public domain.

It was not a surprise to the spectators when both the conventional and new media were heated with mixed reactions from Nigerians, as a result of their various views expressed about the Judgment delivered by the Court. It is pertinent to note that the diverse views expressed both for and against are based on morality and legality of the Court pronouncement. However, it can be inferred that in adversarial legal system practiced in Nigeria barred the Court from setting up cases different from the one set up by the parties before it as postulated by the Apex Court in the case OMINIYI V. ALABI (2015) LAW PAVILION ELECTRONIC LAW REPORT (LPELR)- 24399 (SC) at P.27, Paras. E-F and also in line with Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) CFRN.

In other words, though the Court resides in the society, however, the Court is blind and deaf to the happenings in the society except the one presented before it in line with the law and procedure which are referred to as facts that when admitted become evidences and put in the imaginary Justice scale to determine whether they right or wrong.

While many Nigerians, particularly political sympathizers and enthusiasts are trying to settle with the aftermath of the judgment, the battle to take or maintain the office of the number one citizen of Nigeria, is far from being over when the Candidate of the People’s Democratic Party,(PDP) Alh. Atiku Abubakar secured an Order/Judgment from the Northern District Court of Illinois that mandated Chicago State University to release the Academic records of the Candidate of the All Progressive Congress, His Excellence Bola Ahmed Tinubu. This development immediately changed the narrative in both the legal and socio-political spheres as to the use or importance of the records in the battle, particularly when the trial Court had delivered its judgment. Also, the question as to whether a Degree certificate is a condition for election into the office of the President of the Federal Republic of Nigeria and lastly whether the record can be admitted on Appeal at the Supreme Court.

On the qualification of a person to run for the office of the President of the Federal Republic of Nigeria, according to Section 131 of the CFRN, outlines that the person must be a citizen of Nigeria by birth; by Section 25 of CFRN, secondly, the person must have attained thirty-five years of age, thirdly, the person must belong and be sponsored by a Political Party, and lastly, the person must obtained at least School Certificate level or its equivalent. The above-listed conditions are conjunctive and not disjunctive requirements. However, on the issue of academic requirements, the above provision of Section 131 (d) must be read along with Section 318 (1) of the said Constitution, which is the interpretation section and a careful reading of the Interpretation Section is very liberal and accommodates persons with Primary School Certificate holders coupled with private or public sector experience and who have attended courses and training for a periods of up to a minimum of one year and can demonstrate ability to read, write, understand and communicate in English language to the satisfaction of Independent National Electoral Commission (INEC).

The question should be if the CFRN stipulate School Certificate holder, why the controversy surrounding the degree certificate of the Presidential Candidate of the APC an issue of the contest? Though the law stipulates the least qualification, however, when a candidate proceeds to provide documents or certificates that contravenes Section 137 (1) (j) of the CFRN “he has presented a forged certificate to the Independent National Electoral Commission” do not only disqualified the candidate but also prevent the person to rely on the genuine Leaving School Certificates attached therein, however this was wrongly interpreted the recently delivered Judgment of the Enugu State Governorship Election Petition Tribunal. It is important to note that the forged certificate must be attached to the nomination forms to INEC which in this case is form EC13A, however, this provision cannot be invoked if the alleged forged document is submitted to another Institution or Political Party as held in the case of OKON V. PDP & ORS (2023) LPELR-59645 (CA) Pp. 23-24, Paras. B-A.

As part of the Atiku’s grounds on the Petition contained on page 6 and paragraph 16 (d) and particulars of the ground are contained on page 56, paragraph 146 “The Petitioner avers that the 2nd Respondent was at the time of the election, not qualified to contest the election, not having the Constitutional threshold”. It is a settled position of law that just as with any other pleadings, rules of giving specific details of fact pleaded also applied in Election Petition particularly when it comes to the ground of disqualification of the Candidate which must be fully supported by attending particulars and must not be left vague like an ocean for the Court to cast its net this was the Apex Court decision in the case OSHIOMOLE V. AIRHIAVBERE MAJ, GEN (RTD) & ORS (2013) LPELR-19762 (SC) at Pp. 29-30, Paras. E-A. thus “For the issue of the qualification to be invoked by a petitioner, it must be specifically made on a ground of the petition and fully supported by attending particulars…”

Section 137 of the CFRN, provides 14 disqualifying characters which are disjunctive that bars a person from qualification into the office of the President of the Federal Republic of Nigeria. Looking at the above paragraph 146 of the Akitu’s petition, one may ask that of the 14 disqualification characters of Section 137 of the CFRN which is paragraph 146 of the petition is referring to? However, it was argued before the Court that in the Petitioner’s replying paragraphs to the Respondents’ response, that was struck out by the Court give specific particulars. It is my view that the purpose of reply to response is not to narrow down facts as to Section 137(1) (i) but strictly to reply to new issues raised by the Respondent’s response to the Petition and anything short of that, such averments/paragraphs are liable to struck out as stipulated in Paragraph 16 of the First Schedule to the Electoral Act, 2022, OGBORU & ANOR V. OKOWA & ORS (2016) LPELR- 48350 (SC) Pp. 10-15, Para A and also ONI & ANOR V. OYEBANJI & ORS (2023) LPELR-60109 (CA) Pp. 49-52, Para E.

So, whether the certificate forged was admitted during the at the trial Court, by the Court striking out the relevant paragraphs containing the specific facts in the Akitu’s reply to the INEC and Tinubu’s response, the certificate will also be rejected in evidence. Because evidence led but not pleaded goes to no issue. LUKE V. RSHPDA & ORS. (2022) LPELR-57580 (SC) Pp. 44-45 at Paras. F-A.

The other issue is since the Trial Court has delivered its Judgment, what use is the Certificate/record of the Chicago State University battle? a careful read of Akitu’s Notice of Appeal to the Supreme Court particularly Grounds 18, 19 and 20 addresses the issue of Section 137 (1) (I) of the CFRN that touches on the documents submitted to INEC by Tinubu. The general principle of law is that, an Appellate Court such as the Supreme Court in this instance is wary of receiving fresh evidence not available at the stage of trial. however there is an exception to this position of law that the party must apply formally by attaching it as an exhibit to the Court for consideration of the evidence, the evidence sort to be considered should be such that cannot be obtained within reasonable care and diligence before and during the trial, that if the fresh evidence is admitted it would have an important but not necessarily crucial effect on the whole case, if the evidence is capable of being believed, then the evidence would have influenced the judgment at the trial Court in favour of the party sorting it to be admitted and lastly the evidence must be material to the case and also weighty even if it is not conclusive. DIKE-OGU & ORS V. AMADI & ORS (2019) LPELR-47847 (SC) Pp.14-20 Paras. E-D.

The above six conditions must be met for the application to succeed. Now the question is, assuming that five out of the six conditions were met, can it be said that Akitu don’t fall short of reasonable care and diligence? Because it can be agreed that Tinubu submitted his certificate and accompanying documents to INEC at least two months before the general election, which Akitu should have access to even before the election if he exercises reasonable care and diligence, secondly when did he institute the case at the Northern District Court of Illinois? As Equity they say aids the vigilant and not the indolent. AJAYI V. OSUNUKU & ORS (2008) LPELR- 8332 (CA) P.36, Paras D- E. and lastly, will the Supreme Court overrule the Trail Court on those paragraphs struck out to give life to the certificate to be admitted at the Supreme Court? I will reserve my opinion as these are issues that should be argued by Counsel engaged by parties.

Lastly assuming the certificate is released can it be admitted in Nigeria Court? Foreign documents such as the Chicago State University’s certificate/documents fall under the Public document category by Section 102 (a) (ii) of the Evidence Act 2011 (As Amended) and therefore only admissible in Nigeria’s Court if they meet the requirement of Section 106 (i) of the Evidence Act, “Public document of any other class elsewhere than in Nigeria, by the original, or by a copy certified by the legal keeper of such documents with a certificate under the seal of a notary public, or of a consul or diplomatic agent that the copy is duly certified by the Officer having the legal custody of the original, and upon proof of the character of the document according to the law of the foreign country”. Such documents are distinct from the Judgment obtained from Foreign Court. ALLI V. OKOLOKO (2023) LEPLR- 60700 (CA) Pp. 36-37, Paras. E-A. I hope the Court of Public Opinion will not crucify the Court of Justice for applying the law set down by the Legislators elected by the Court of Public Opinion.

Tohwo Oseruvwoja, Esq.

[email protected] United Kingdom