*Says results relevant to authentication of certificate submitted to INEC
*Urges court to overrule President, order release of records not later than October 2.
Former Vice President and presidential candidate of the Peoples Democratic Party (PDP) in the disputed February 25 election, Alhaji Atiku Abubakar, yesterday, submitted before a United States District court that there was no basis for President Bola Tinubu’s objection to the order of a magistrate court directing the release of his academic records at the Chicago State University.
While urging the court to overrule Tinubu’s objection to the release of documents relating to his transcript, admission letter amongst others, Atiku prayed the court to allow the order of Magistrate Judge Jeffrey Gilbert and ordered that the academic records as requested in his August 2, application be released not later than October 2.
Atiku stated this in his reply to Tinubu’s objection to Magistrate Judge Jeffrey Gilbert’s opinion and order, delivered on September 19, 2023.
Judge Gilbert in his judgement in an Application for Discovery filed by Atiku had ordered the release, within 48 hours, limited information about Tinubu’s academic records to Atiku.
But, before the order could be effected Tinubu approached a United States District Court for the Northern District of Illinois, Eastern Division, to stay the order till Monday September 25, when he would file his appeal against the order.
He predicated his appeal on the grounds that the magistrate court erred in making such order for discovery when by law it out to only make recommendations to the district court.
Amongst others, Tinubu argued that the documents sought by Atiku were purely for a fishing expedition and not “for use” in Nigeria; one of the major requirements for the order of discovery.
Additionally, he argued that if the high court was inclined to grant Atiku’s application, then the order should be reviewed and limited to only his Diploma Certificate he submitted to the Independent National Electoral Commission (INEC), adding that the court should preclude the release of other documents.
However, Atiku in his response through his lawyer, Angela Liu, told the high court that all the issues raised in Tinubu’s objection had been resolved by Judge Gilbert before granting the application for discovery.
Besides, Atiku stated that the limited records the magistrate ordered to be released to him were relevant to the authentication of the certificate Tinubu submitted to INEC in aid of his qualification for the 2023 presidential poll, which he won.
While describing Atiku’s case as “a straightforward Section 1782 application”, Liu, argued that, “Contrary to Intervenor’s inflated rhetoric, Applicant is not seeking “to conduct a fishing expedition into Intervenor’s private, confidential, and protected educational records.
“Rather, Applicant seeks to test (1) the authenticity and origin of 12 pages of documents (including two very different diplomas) that purport to have been issued by CSU (the “CSU documents”) — all of which have already been submitted to the Nigerian courts and widely published in the media; and (2) the basis for CSU’s categorical assertion that Tinubu received a B.S. degree in 1979, given discrepancies between information in the CSU documents and information in his affidavit submitted to INEC.
“If, as Intervenor asserts, he graduated from CSU in 1979—and the CSU documents are authentic copies issued by CSU—there is no reason why he should oppose the limited discovery Applicant seeks.”
Among others, Atiku pointed out that Tinubu failed to prove that the limited documents he was praying the court to release to him would not be accepted by the Supreme Court in his appeal against the judgement of the presidential election tribunal, which failed to address the issue of Tinubu’s alleged non-qualification on the grounds that Atiku raised the issue out of time.
“As Judge Gilbert noted, the Court of Appeal declined to consider that evidence and the underlying argument because they were not “raised for the first time in the initial Petition,” and that Applicant intends to appeal (and now has appealed) that decision. Because Applicant submitted evidence in his Application that there is “a mechanism by which new evidence could be presented to the Supreme Court of Nigeria,” the discovery sought meets the “for use” requirement.
“Further, Intervenor himself has submitted documents that were supposedly certified by CSU in the related Obi case. Discovery as to whether CSU in fact provided and certified those documents (and under what circumstances) is also relevant to these issues.
“Finally, Intervenor’s unsupported assertion that the heightened relevance of the authenticity of the diploma obviates the discovery concerning Tinubu’s election qualifications, including whether he actually attended CSU, makes no sense.
“An order directing discovery on the former need not come at the expense, or to the exclusion of, the latter. The Court should overrule the objection as to the “for use” requirement.
Arguing further, Atiku claimed that Tinubu did, “not dispute that a legal mechanism exists” then “he does not dispute this now, (acknowledging that the Supreme Court can “lift” the evidentiary procedural bar and reopen the record to “add new allegations and supporting evidence.”
In addition, Atiku claimed that Tinubu cannot credibly assert that Judge Gilbert “gave no weight to the decision of the Court of Appeal, in addressing the receptivity of the Nigerian courts to the new evidence.”
“For the foregoing reasons, the Court should overrule the Objections in their entirety”, Atiku submitted.
He further urged that “If the Court overrules the Objections, Applicant respectfully requests that it enter an order requiring production of documents no later than October 2, 2023, and the deposition scheduled no later than October 3, to allow time for transcripts to be finalised, and the discovery obtained to be sent to Nigeria (which is six (6) hours ahead) by October 4 so that such evidence may, in turn, be filed with the Supreme Court by October 5, which is when Applicant’s Nigerian counsel intend to submit any new evidence to the Supreme Court.”
Atiku had on August 2 brought an application for an order of mandamus compelling the CSU to release information regarding Tinubu’s record argued that Section 137 (1)(j) of the Nigerian Constitution (amended in 2010) specifically stated that no one would be legitimately elected president of Nigeria if the person, “has presented a forged certificate to the Independent National Electoral Commission.”
Tinubu had on June 17, 2022, submitted a certificate to INEC that was purportedly issued in 1979 and signed by Elnora Daniel. But Ms Daniel only arrived at CSU in 1998, from Hampton University, 19 years after Tinubu was said to have graduated. She left the school in 2008, following a financial mismanagement scandal, or 14 years before June 2022 when CSU issued yet a fresh certificate in Tinubu’s name under subpoena from a Nigerian lawyer who had inquired about Tinubu’s education there.
The irregularities prompted Atiku to file the suit to compel CSU to produce records relating to Tinubu and make its top officials available for deposition to certify the produced records, according to the Nigerian opposition leader’s lawyers. During a hearing on the matter on September 12, the CSU’s lawyer Michael Hayes, had said the school could not authenticate Tinubu’s certificate if asked under oath, although he said Tinubu attended the school and graduated in 1979.
Tinubu’s lawyers, led by Carmichael, argued that the court should not grant Atiku’s application because it was a frivolous expedition aimed at soiling the Nigerian president’s image.
Carmichael had also argued that the Nigerian Supreme Court would not accept fresh evidence that was not produced during the tribunal proceeding.
But Atiku’s team, led by Liu, argued that the Supreme Court would accommodate the fresh facts under unique circumstances, especially as they were not available to the Court of Appeal, which is the court of first instance in a presidential election dispute.
In his ruling, Judge Gilbert had held that courts across the U.S have traditionally taken a broad and liberal view in granting applications under Section 1782, a statute that allows the release of documents and evidence domiciled in the U.S. to be obtained and used in a foreign proceeding.
