Barr. Fiderikumo Calls For Close Scrutiny Of Atiku’s Allegation Of Forgery Against Tinubu

In paragraph 3(i) of Atiku’s response to Tinubu’s reaction to his Petition, Atiku asserted that the 2nd Respondent (Tinubu) has demonstrated inconsistency as to his actual date of birth, secondary schools he attended (Government College Ibadan); his State of origin, gender; actual name; certificates evidencing Universities attended (Chicago State University). The purported degree Certificate of the 2nd Respondent allegedly acquired at the Chicago State University did not belong to him but to a Female (F) described as “F” in the Certificate bearing the name Bola Tinubu.

In retrospect, it is important to state that in the actual Petition filed by Atiku against the return of Tinubu as then President elect of the Federal Republic of Nigeria, Atiku did not make an iota of Criminal allegation against Tinubu. Indeed, on the issue of whether Tinubu was not qualified from contesting the election, all Atiku did was merely (without details and particulars) to assert that ‘the Petitioners aver that the 2nd Respondent was at the time of the election, not qualified to contest the election, not having the constitutional threshold’. See paragraph 146 of the Petition.

 It was in his Reply that the allegation of another’s CSU (Chicago State University) certificate was made. And this was a time when by the strict rule of the 1st Schedule to the Electoral Act, 2022, Tinubu could not file a rejoinder to the fresh allegations of use by Tinubu of a certificate belonging to an unidentified woman.

Let us calm down and take a close scrutiny at the much talked about allegation of forgery. If you look objectively at paragraph 3(i) of Atiku’s reply to Tinubu’s response to his Petition, you will notice and can infer the following:

 Atiku did not plead that Tinubu’s CSU certificate was forged.  No, he did not say so.

 He pleaded that the certificate does not belong to Tinubu but another person, who is a woman.

Implied in the foregoing statement is that the certificate itself is not forged but belongs to another person, who is a woman.

He did not plead the address of the woman, the identity, nationality, and other things that can help in identifying the woman that he claims is the owner of the certificate being bandied about by President Tinubu.

He did not plead that the certificate was submitted to INEC for the purposes of the last presidential election.

What has been missing in the debate bordering on the allegation against President Tinubu for forgery is a clear understanding before the Supreme Court and the Court of Appeal and how the mission to Chicago actually held the precise case of Atiku.

On the foregoing point, it is important to note that in civil cases of which election Petition was, you must adduce evidence to prove your case as pleaded and no other case.  Any evidence that is at variance with your pleadings, that is, does not go to the fact pleaded by you, will be rejected for such evidence does not go to any issue.

Allegations that a certificate used for the purposes of election does not belong to the person who presented but another is not lightly taken and treated by law. In addition to the requirement that the person making the allegation is duty bound to provide particulars of the allegation, he must prove beyond reasonable doubt the allegation of forgery by calling an official of the school (being a material witness) to show that the person, who purports the certificate in issue belongs to him did not attend that school and in the case where it is alleged that the certificate belongs to another person other than the person alleged to have obtained, you must call the person or at the barest show the existence of who certificate has been stolen, as it were.  A man who makes an allegation should be able to support his claims with evidence. Allegations do not translate to evidence.

Can a ground for disqualification come as a Reply? Not at all. That paragraph (paragraph 3 (i)) is one of those in the Reply Struck out by the Court of Appeal. What is worse, no evidence, oral or documentary was led in support of that claim. The implication is that the allegation was abandoned by Atiku. So, the question of fresh or additional evidence does not and cannot arise unless they want to turn the Supreme Court to a trial Court.

Another point is that aside from the fact that the point they are now making about forgery, that is that the CSU has disowned the President’s CSU certificate, and for that reason they introduced it at the Supreme Court, does not sit with what they have pleaded. Atiku’s allegation is not the forgery of the CSU certificate bearing, Bola A. Tinubu. It is that the said certificate does not belong to him but to some curiously unidentified woman. Who is this woman? Atiku is yet to tell Nigerians.

Section 39 and 46 of the Evidence Act, 2011 as amended stipulate strict conditions for the admission or the use of testimony in a prior judicial proceeding in a latter one. None of those conditions have been met.  In ADEYEFA & ORS V. BAMGBOYE 2013) LPELR-19891(SC), the Supreme Court held that where a document for which leave is sought to be tendered  as additional or fresh evidence in the Supreme Court does not meet the requirements of the Evidence Act, 2011 as amended, leave should not be granted. What do Sections 39 and 46 of the Evidence Act, 2011 as amend say?

Section 46(1) of the Evidence Act, 2011 as amended provides that Evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it, is admissible for the purpose of proving in a subsequent judicial proceeding or in a later stage of the same judicial proceeding the truth of the facts which it states, when the witness cannot be called for any of the reasons specified in section 39, or is kept out of the way by the adverse party. Provided that-(a) the proceeding was between the same parties or their representatives in interest;(b) the adverse party in the first proceeding had the right and opportunity to cross-examine; and (c) the questions in issue were substantially the same in the first as in the second proceeding.

 Notice that the operation of Section 46, which is relevant and applicable to the proceedings of the US Court sought to be introduced as additional or further evidence by Atiku refers to and depends on Section 39 for understanding and operation. Section 39 states that statements, whether written or oral of facts in issue or relevant facts made by a person-(a) who is dead; (b) who cannot be found; (c) who has become incapable of giving evidence; or (d) whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the court unreasonable, are admissible under section 40 to 50.

Judge for yourself if you can by virtue of Section 46 of the Evidence Act, 2011 as amended rely on the proceeding of the US Court without meeting the conditions under Section 39 of the self-same Act. Is the Registrar of CSU, Mr. Caleb Westberg dead? Has he become incapable of giving evidence in a Nigeria Court? On when a party to a proceeding can rely on the evidence given by a witness in a previous proceeding for the purpose of establishing the truth of what the witness said earlier, in a subsequent proceeding, see the case of EZE V. ENE & ANOR (2017) LPELR-41916(SC)

Truth be told the proceeding, which they (Atiku and PDP) are relying upon at the Supreme Court containing 150 pages, was one of discovery – discovery of documents relating to the President. Only one witness was allowed to testify, Caleb Westberg, the Registrar of CSU. It was not a case in which the issues in the Reply were raised, witnesses for and against were called, and a determination made on the claims of Atiku that Tinubu is going about with the certificate of some unidentified woman.

In fact, the testimony of the Registrar is that the person whose name appeared in their records as Bola A. Tinubu is a man, and he is the incumbent President of Nigeria. That sworn testimony negatives Atiku’s Reply. See Pages 48, 64 and 66 of the deposition of the said Registrar. The answers from Mr. Westberg you will find out from the said pages where in reaction to questions asked by Ms. Angela Liu, Atiku’s Counsel at the proceedings.

 At page 48 of the recorded proceedings, it states: Q: SO CSU HAS NO BASIS TO CONCLUDE WITH CERTAINTY THAT BOLA TINUBU WHO ATTENDED CSU IS THE SAME BOLA TINUBU WHO IS PRESIDENT, CORRECT? A: NO WE BELIEVE THEY ARE ONE IN THE SAME. At Page 66, it states; AN YOU’RE AWARE OF THE DISCREPANCY IN HIS GENDER? A: THE UNIVERSITY IS NOT CONFUSED ABOUT THAT. WE ISSUED ADMISSION LETTER TO MR. BOLA TINUBU. HE APPLIED AS A MALE STUDENT. THAT IS PART OF THE RECORD.

In discovery proceedings of the 3rd of October 2023 in the United States Court, which is basis for the frivolous application for additional/further evidence, Atiku did not lead evidence to establish the woman Atiku alleges or alleged is the owner of the certificate Tinubu says is his and the fact that at the time of the election the President was less than the 35 years of age. Age discrepancy is not a ground for disqualification. A serious allegation would be that the person had not attained the constitutional age to contest the election, which is not the case Atiku made at the Court of Appeal in his Petition.

 There is a lot to be said on this issue. But let me rest for now and give you the opportunity of digesting this piece by reference to the cases, processes referenced herein and the discovery deposition of Mr. Westberg. I will urge you take time to read the examination of Mr. Caleb Westberg by Ms. Agela Liu, Atiku’s Counsel.  It runs from page 5 (line 6) up to page 98 (line 16) and page 123 (line 6) up to page 125 (line 11)

 As a closing remark, based on the claims by Atiku as captured in his Reply above, the question whether the President’s CSU certificate was issue by CSU or forged or not forged (irrespective of where you stand on this issue) has nothing to do with the claims of Atiku at the Court of Appeal and which is what is before the Apex Court. Hear this: Atiku does not have a fresh or additional Petition or Reply before the Supreme Court. What  he, Atiku has at the Supreme Court is that: “The purported degree Certificate of the 2nd Respondent allegedly acquired at the Chicago State University did not belong to him but to a Female (F) described as “F” in the Certificate bearing the name Bola Tinubu”. The wheel of Atiku’s Petition cannot be reinvented. Know this and forget about the appeal. Think on this.”