By Emeka Ugwuonye
Nigeria has faced and survived many profound upheavals and turmoil in its short history as an independent country. It faced the 1966 crisis and the civil war that followed it. It faced the MKO Abiola debacle. In each of these events, we thought that the country was going to implode. But, miraculously, it did not. Only Nigerians would tempt the gods this far and still remain unbroken into smithereens. The current situation with Tinubu and his incredible certificate saga seem to be one more test of the gods and one push too far against destiny. For one man to be twice a governor of the richest state in Nigeria and accumulate so much control over the wealth of the people, and eventually clinched the claim to occupy the office of the president all based on questionable credentials is simply too much, isn’t it?
The issues arising from the outcome of the case of Atiku v. Tinubu in Chicago, USA, has raised huge political turbulence in Nigeria, which must now be analyzed in the context of Nigeria’s history of upheavals. The question now is: will Nigeria survive Tinubu presidency? The fallout of the Chicago case may very well lead to the unravelling of Nigeria. That the man Tinubu could fool millions of his countrymen and women for so long on something as basic as his educational history and records is mindboggling. Even more mindboggling is the fact that it would take last minute litigation in faraway Chicago to get close to the truth.
It is now obvious that Tinubu forged the academic records he submitted to the INEC. That is now beyond doubt. The question of whether he attended Chicago State University and graduated from there is not the question before the law. Rather, the question is whether the documents he submitted to INEC were actually issued and signed by those said to have signed them. A document prepared and signed by someone else is a forgery even if the contents of that document are accurate. A birth certificate signed by the Hospitals Accountant pretending to be the Hospital’s Medical Director is a forgery even if every piece of information on that Birth Certificate is true. So, the question at this point is not whether Tinubu attended that university. It is not whether he graduated from that university. Rather, the question and only question is whether the document he submitted came from that university and signed by the appropriate officials of that university. The answer to this question is now clearly no. This is because under deposition, the officials of Chicago State University officials stated that they “have no idea of where or how Tinubu obtained the certificate he submitted to the INEC”. That conclusively means that Tinubu produced the certificate from the wrong source. That is conclusively forgery.
Let us put the stories aside and choose the version that favors Tinubu the most. And that would be that he actually attended the university. He was graduated at some point. However, he lost his certificate. As the election approached, instead of swearing an affidavit that he had no certificate to back up his claims, he decided to manufacture a certificate that would state that he graduated from that university. In other words, let us assume that he attended the university and that he graduated from that university. However, by writing up a certificate for himself, he committed forgery. And by submitting the forged certificate to INEC, he stood disqualified under Nigeria’s Electoral Act of 2022. That is the basis upon which he should be disqualified.
Before we get to the disqualification of Tinubu, we need to address two procedural or technical issues of law that would come up. The first challenge is the issue of pleading format: At what point is an issue properly raised in pleadings in court? Following the case of Atiku v. Tinubu at the Court of Appeal in the first instance, Atiku did not raise the issue of certificate forgery in his Petition. It was in his Reply to the Answer that he raised it. In its judgment, the Court of Appeal refused to look into the certificate forgery allegation because according to it, Atiku did not raise it properly. (Instead of raising it in his Petition, he raised it in his Reply to the Tinubu’s Answer to Atiku’s Petition). This is the most blatant application of technicality in that judgment. It meant that the Court would turn its eyes away from the truth of the issue because it was not properly presented to it. That is disturbing indeed. It means that the court would allow a person to get away with a glaring wrongdoing because the victim was slow in complaining. But who is the victim of such a blatant violation of the electoral laws of Nigeria? It is actually the people that are victims. Our court therefore failed so obviously in its analysis of that point.
At the Supreme Court, the issue will arise again. Tinubu will urge the Supreme Court to use the same reasoning as the Court Appeal’s to turn a blind eye to the certificate issue. If the Supreme Court follows the Court of Appeal’s reasoning on that, it means that the entire discovery that came out of the Chicago Court trial would be of no consequence in the outcome of the appeal. I doubt that the Supreme Court would do that. The reason is clear: At the US District Court, Tinubu’s lawyers pointed out that the issue under consideration had been resolved by Nigerian Court of Appeal based on the fact that the Court of Appeal had held that the issue was not properly raised. That gave the Chicago Court an opportunity to deal with that question. And the Chicago Court refused to follow the technical path beaten out by the Nigerian Court of Appeal. The Chicago Court did not consider the issue resolved by the mere fact that it was not raised properly. By so doing, the Chicago Court sent a message to the Nigerian Supreme Court that such a critical issue ought not to be disposed of on mere technicality.
What Chicago Court did is what a disinterested and independent judiciary will do. So, the Chicago Court has set a tone that would hardly be ignored by the Nigerian Supreme Court. To ignore that tone would send a message to the world that the Nigerian Supreme Court justices are neither independent nor disinterested in the outcome of the case. That will make the Justices enablers of electoral fraud. I doubt that the Nigerian Supreme Court Justices would take such a risk.
Another procedural challenge Atiku would have at the Supreme Court is based on the fact that generally, a court exercising an appellate jurisdiction does not receive or review fresh facts or fresh evidence. The orientation of the court on appellate review of a judgment of a lower court is to restrict itself to the facts and evidence presented at the lower court. It does not take new evidence. Indeed, Tinubu’s lawyers have made that argument at the Chicago Court. They vehemently pointed out to the US District Court judge that the whole exercise of Atiku in Chicago would be of no moment because the Nigerian Supreme Court, being an appellate court, would not receive fresh evidence. But again, the judge did not think they were right. Hence, she went ahead with the trial all the way to her landmark judgment.
The question now is: Will the Nigerian Supreme Court receive evidence of discovery from Chicago even though such evidence did not feature at the trial at the Court of Appeal? That is: will the Nigerian Supreme Court receive fresh evidence? I admit that all over the world, it takes an exceptional circumstance for an appellate court to receive new evidence. But it is doable and it will be done by the Supreme Court of Nigeria.
A court of appeal will consider new evidence in exceptional circumstances where the evidence was not available or could not have been discovered at the time of the original trial. Some common conditions under which a court of appeal may consider new evidence include:
1. Newly discovered evidence: If the evidence is genuinely new and was not available at the time of trial, a court of appeal may consider its admissibility if it has the potential to change the outcome of the case.
2. Error in admitting or excluding evidence: If there was an error in admitting or excluding crucial evidence during the original trial, a court of appeal may consider new evidence that could remedy this error.
3. Fraud or misconduct: If there is evidence of fraud or misconduct by either party or a juror, a court of appeal may consider new evidence that exposes the unfairness of the original trial.
4. Ineffective assistance of counsel: If new evidence reveals that the defendant’s lawyer provided ineffective assistance during the trial, a court of appeal may consider this evidence and potentially grant a new trial.
5. Constitutional violations: If there is evidence that constitutional rights were violated during the trial, such as the right to a fair trial, a court of appeal may consider new evidence that supports this claim.
It is important to note that the conditions for considering new evidence may vary slightly among different jurisdictions and legal systems. But the above conditions are applicable in Nigeria.
What will happen if the discovery from Chicago is accepted into evidence by the Nigerian Supreme Court? It is highly likely that the Supreme Court would come to the conclusion that Tinubu submitted forged certificate to the INEC and on that ground he would stand disqualified.
I deliberately limited the above analysis to the law of this case and the trials. I did not want to address the social implications of the fact that the case in Chicago has presented Nigeria to the world as a country of crooks. The damage done to Nigeria’s reputation is irreparable. Now, ironically, one can understand why Tinubu’s lawyers argued that allowing the case to go on would cause irreparable damage to Nigeria. Yes, it did. But that is ultimately in the interest of Nigeria for the truth to come out.
