Tendering fresh evidence at Supreme Court is herculean task – Lawyer

Housing ReporterOctober 8, 2023

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A legal luminary, Mr Paul Erokoro, SAN, says tendering additional evidence at the Supreme Court is an uphill task that requires a great deal of effort.

According to him, the rules admitting fresh evidence at the Supreme Court were very stringent.

Erokoro made the remark on Sunday in Abuja in an interview with the News Agency of Nigeria (NAN) on the type of evidence that can be admitted at the Supreme Court.

He said the general rule is that additional evidence is not encouraged at the apex court.

“The general rules is that additional evidence at the Supreme Court or any Court of Appeal is not encouraged at all, but that doesn’t mean that it is totally forbidden.

“However, the rules for admitting it are very stringent.

“The first is that such evidence is going to be extremely material to the resolution of the issues in the case. That’s one of the hurdles to be crossed.

“The second hurdle is that such evidence could not have been procured during the trial at the trial court by reasonable diligence.

“So it is either the evidence was not available at the time of the trial or it could not, by any kind of due diligence or any reasonable effort, be made available.

“For evidence to be admissible at the Supreme Court or in any Court of Appeal, it has to, at a very minimum, satisfied those two conditions,” he said.

On whether there are provisions in the constitution allowing a party to tender additional evidence at the apex court, the senior lawyer said: “Most of these rules are case laws and the Evidence Act does not specifically make these provisions.”

He stressed that it is only backed by the rules of the court.

“In the case of election petition, the constitution requires that the proceeding be concluded within 180 days at the election tribunal which, in the case of the presidential election, is the Court of Appeal.

“So the Court of Appeal which may have power to admit additional evidence cannot have any jurisdiction if the jurisdiction of the trial court has expired.

“For instance, if a Court of Appeal has within six months to hear and conclude a presidential election matter and the six months have expired, even if the Supreme Court wanted to admit an additional evidence, it doesn’t seem to me that it would be able to admit such evidence after the expiration of the six months,” he said.

According to him, if such evidence becomes available, it is very likely that it cannot be admitted on appeal.

“This is because it may not meet the jurisdictional requirement which is that a court which has jurisdiction to do it, will it have done it at this time?

“And if the period available for the trial court has expired, there is nothing the Appeal Court, in this case, the Supreme Court, can do,” he said.

Erokoro said that the Supreme Court or any appellate court in the country had 60 days within which to hear and conclude election matters.

He said even though the Supreme Court has jurisdiction to hear the appeal, it would have jurisdiction only in relation to the appeal.

“The fact that the Supreme Court has only two months within which to hear the appeal will not revive the jurisdiction of the trial court,” he added.

On whether there is a period within which a Supreme Court can admit additional evidence, Erokoro said: “Except when it is dealing with matters that have come before it under its original jurisdiction, the Supreme Court doesn’t, generally, admit evidence.

“It is an appeal court and its function is to see whether the matter was properly tried at the trial court, and not to admit additional evidence.

“It’s just that there are few exceptions to the rules regards that and those exceptions, I have already explained to you.

“But outside that, the Supreme Court, generally, doesn’t like to admit additional evidence because it is not fair to the trial court which did not hear that.

President Bola Tinubu (L), former Vice-President Atiku Abubakar, and the Chicago State University logo.
“Two, you will not give the other party the chance to, maybe, gather evidence that could have contradicted that one.

“So that is why the rules are very strict and that’s why you don’t see it happening all the time.”
He said though the move could succeed, he described it as “an uphill task.”

When asked about grounds that an already decided case can be reviewed at the Supreme Court, he said though the grounds are not determined by law, there are rules of trial that are universal in Nigeria.

“One of them is whether due process was followed, admissible evidence rejected or inadmissible evidence admitted, if trial court failed to act fairly to both sides, if the lower court made mistake as regard the law to be applied, etc.

“So there are so many possibilities that the grounds of appeal can be built around,” he said.
Erokoro said though it was reported in the media that Alhaji Atiku Abubakar, the Peoples Democratic Party (PDP)’s presidential candidate in the Feb. 25 poll, planned to file new evidence at the apex court, it was still in the realm of speculation.

“This is actually within the realm of speculation because I have not seen the evidence beyond what the press has reported and I don’t know whether those who issued the documents are prepared to come to court, otherwise, there is a risk of what is called, ‘documentary hearsay,’” he said.

NAN reports Abubakar on Friday sought the leave of the Supreme Court to bring in fresh additional evidence to prove that President Tinubu submitted a forged certificate to the Independent National Electoral Commission (INEC) in aid of his qualification for the presidential election.The documents Atiku sought to tender are Tinubu’s academic records, which were handed over to him by Chicago State University (CSU) on Monday, October 2, 2023.

The 32-page documents were released to the former Vice President on the orders of Judge Nancy Maldonado of the District Court of Illinois, Eastern Division, Illinois, U.S. (NAN)

Source: The Conclaveng