Atiku intends to use the Chicago State University (CSU) documents as proof of certificate forgery against Mr Tinubu at the Supreme Court.
Atiku Abubakar, in his quest to overturn President Bola Tinubu's election, has asked the Supreme Court for permission to file some Chicago State University (CSU) documents concerning Mr Tinubu as fresh evidence to support his appeal challenging the outcome of the disputed 25 February poll.
Atiku, the presidential candidate of the Peoples Democratic Party (PDP), based his application for leave to file fresh evidence on Order 2, Rule 12(1) of the Supreme Court Rules 1985 and section 137(1) of Nigerian constitution.
The former Vice President, through his team of lawyers led by Chris Uche, filed the application on 5 October, urging the Supreme Court to grant him leave to produce and for the court to receive "fresh and additional evidence" - documents, including a deposition on oath of an official of the Chicago State University (CSU) concerning Mr Tinubu's academic records.
Atiku had questioned the authenticity of President Tinubu's CSU certificate submitted to the electoral body, INEC, as a candidate for the 2023 presidential election. Alleging forgery of the said certificate, Atiku argued that Mr Tinubu was not qualified to contest the election.
The Presidential Election Petition Court in Abuja, in its decision delivered in September, dismissed the certificate forgery allegation in the separate petitions filed by Atiku and Labour Party's presidential candidate, Peter Obi. The court affirmed the election of the president, who was the candidate of the All Progressives Congress (APC) in the election.
Unrelenting, both Atiku and Mr Obi filed separate appeals at the Supreme Court to challenge the decision of the presidential election court, with each of them insisting that the court declare them them winner of the election or order a fresh one.
Atiku went a step further to obtain an order of a United States court to compel CSU to release Mr Tinubu's academic records.
A cache of documents was released to Atiku on 2 October on the order of Judge Nancy Maldonado of the District Court of Illinois, Eastern Division, Illinois, United States of America.
In a deposition made at the court on 3 October, Caleb Westberg, the registrar of CSU, confirmed that Mr Tinubu graduated from the university in 1979. Also confirming Mr Tinubu's identity, Mr Westberg confirmed that the same person with the name who graduated from the university in 1979 is the current Nigerian president.
But he prevaricated, neither confirming nor denying the authenticity of the certificate Mr Tinubu submitted to INEC.
"We were not qualified to verify whether this document is authentic, given that it is not in our possession," he said in a response to a question by Atiku's lawyer.
But insisting on the allegation that Mr Tinubu forged the certificate under reference, Atiku is now seeking to tender the university registrar's deposition with other relevant documents released to him by the university in support of his appeal at the Supreme Court.
Why I'm tendering additional evidence
Atiku argued in his fresh application filed at the Supreme Court that forgery and perjury are a serious constitutional issue; hence the court should order the removal of Mr Tinubu as president.
He added that the deposition which the CSU official made on oath and deposed to in the presence of Mr Tinubu's attorneys is "credible and believable, and ought to be believed."
He therefore asked the Supreme Court to "receive the said deposition in evidence as exhibit in the resolution of this appeal".
Why Supreme Court should accept our fresh evidence
Atiku's legal team now faces an uphill task of introducing an exhibit, not tendered at the trial court, for the first time at the Supreme Court.
But his lawyer, Mr Uche, a Senior Advocate of Nigeria (SAN), explained in their application that the deposition from CSU was only made on 3 October after the trial ended at the Court of Appeal.
"The evidence is such that could not have been obtained with reasonable diligence for use at the trial, as the deposition required the commencement of the suit in the United States of America before receiving same. It was not possible to obtain the said evidence before the trial at the Court below."
Mr Uche reminded the Supreme Court that presentation of "a forged certificate to the Independent National Electoral Commission by a candidate for election to the office of President of the Federal Republic of Nigeria is a weighty constitutional matter, requiring consideration by the Courts as custodians of the Constitution".
He noted that the original certified deposition was forwarded to the Supreme Court by a letter addressed to the chief registrar of the court.
The lawyer contended that the Supreme Court had the power, the jurisdiction and the discretion to approve an application for bringing additional evidence on appeal, citing Order 2 Rule 12 (7), (2) and (3) of the Supreme Court Rules.
The part of the rules cited reads: "A party who wishes the court to receive the evidence of witnesses (whether they were or were not called at the trial) or to order the production of any document, exhibit or other thing connected with the proceedings in accordance with the provisions of Section 33 of the Act, shall apply for leave on notice of motion prior to the date set down for the hearing of the appeal.
"The application shall be supported by affidavit of the facts on which the party relies for making it and of the nature of the evidence or the document concerned.
"lt shall not be necessary for the other party to question the additional evidence intended to be called but if leave is granted the other party shall be entitled to a reasonable opportunity to give his own evidence in reply if he so wishes," the court filings showed.
Atiku's legal team also cited a Supreme Court precedent in a 2011 case of UZODINMA Vs IZUNASO in which the court allowed Wole Olanipekun, who is currently Mr Tinubu's lead counsel, to bring fresh evidence based on the constraints he faced obtaining the documents.
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"Learned counsel for the Appellant, Chief W. Olanipekun SAN, observed that trial took just three days and judgment was delivered on 28/1/2011, he thus had very little time to assemble relevant documentary evidence, including exhibit HU2, He further observed that it was on 7/4/11 that he obtained from the PDP Secretariat the extract of the NWC meeting of 5/1/2011 - Exhibit HU2. He submitted that the documentary evidence (Exhibit HU2) is clear and unambiguous and no further evidence is to be adduced on it," Atiku's lawyers quoted the Supreme Court as saying in the case cited.
According to the lawyers, in granting Mr Olanipekun's application, the Supreme Court held, "The discretion to grant leave to admit new evidence, fresh evidence or additional evidence is properly exercised if it is for the furtherance of justice. Judges must exercise that power sparingly and with caution.
"This is so because granting the application could amount to allowing the applicant to reopen his case or present a new case."
But the Supreme Court gave a caveat.
It ruled that such application should be granted "if the applicant is able to satisfy the court that it was extremely difficult or not possible to obtain the evidence before trial and it is in the interest of justice that the said evidence is led."
Meanwhile, Mr Uche informed the Supreme Court that they would be relying on the record of appeal already transmitted to the court from the lower court.
