*Agrees Nigeria’s Supreme Court has a mechanism to adopt new evidence
*Bars Tinubu from further appeals
*Court expedites deposition process to meet Supreme Court deadline
From Kayode Lawal, Abuja.
The Presidential candidate of the Peoples Democratic Party (PDP), Atiku Abubakar, has again emerged victorious in his fierce legal battle to probe into the academic qualification of President Bola Tinubu in the February 25 presidential poll.
Tinubu had supplied certificates from the Chicago State University (CSU) to the Independent National Electoral Commission (INEC) to secure eligibility to participate in the 2023 election.
A United States of America court on Saturday granted a request of Atiku to have the academic records of Tinubu from the CSU for verification and in support of his petition challenging the declaration of Tinubu as winner of the election.
Justice Nancy Maldonado, in a judgment, dismissed the objection raised by Tinubu against Atiku’s request and expressly ordered that the CSU must submit the academic records to Atiku.
The judge in the judgment granted all the four grounds upon which the former Vice President of Nigeria predicated his case in the US court.
Justice Maldonado said that Tinubu’s “angry rhetoric” cannot take the place of evidence, hence the order that the academic records be released in the interest of justice.
The Harvard University trained Judge specifically issued an ultimatum of 48 hours to the university within which to comply with her order and release the controversial academic records to the PDP presidential candidate.
Maldonado, in the judgment, pointed out that Tinubu did not adduce any sound evidence to upturn the judgment of the Magistrate Court, which had earlier granted Atilku’s request for discovery before Tinubu moved to scuttle execution of the order.
“Given that the Nigerian court deadlines were fast approaching, the Court set an expedited briefing schedule on President Tinubu’s objections.
“The parties have now completed that briefing, and the Court has reviewed their submissions. For the reasons stated in this Memorandum Opinion and Order, the Court overrules President Tinubu’s objections and adopts Judge Gilbert’s recommended decision in full.
“The Court therefore grants Mr. Abubakar’s application under 28 U.S.C. § 1782.
“CSU is directed to respond to Mr. Abubakar’s subpoena in the time and manner provided for below. “
Amongst the issues raised by Tinubu in objecting to the release of his academic records include claims of privacy and that Atiku was on a fishing expedition since he can no longer use the documents to prosecute his appeal at the Supreme Court, since his case was not considered by the presidential tribunal.
However, Maldonado stated that Judge Gilbert did not give a final judgment in the application dated August 2, but rather gave a “report and recommendation” subject to de novo review for any objected-to
portions.
“Of course, as will be seen below, even under de novo review, the Court ultimately reaches the same conclusion as Judge Gilbert and finds that the application should be granted. And further, as noted above, the Court only reviews de novo those portions of Judge Gilbert’s opinion to which a party has objected.
“For the portions to which no party has objected, the opinion is reviewed only for clear error.”
On Tinubu’s submission that the documents cannot be presented to the apex court to prove Atiku’s case, the court held that Tinubu failed to provide “any testimony or evidence indicating that the Court of Appeal decision somehow prevents the Supreme Court of Nigeria, in its discretion, from considering new arguments and evidence under “exceptional circumstances.
“Indeed, President Tinubu expressly conceded that was the case before Judge Gilbert, and he still does not dispute that this procedural mechanism for presenting evidence to the Supreme Court of Nigeria under “exceptional circumstances” exists. President Tinubu’s suggestion then that the evidence “cannot be considered under any circumstances” is thus unsupported by the record.
“This Court cannot and will not speculate as to Nigerian law and procedure. What the Court has before it is a sworn affidavit, which President Tinubu did not contest before Judge Gilbert, that the Supreme Court of Nigeria can consider new evidence under “exceptional circumstances.
“In other words, it is undisputed that there is a mechanism by which Mr. Abubakar could potentially inject the requested discovery into the foreign proceedings. Whether the Supreme Court of Nigeria will ultimately allow Mr. Abubakar to use the documents, or whether it will consider them in its decision, are not questions for the Court to resolve.
Having held that the discovery is thus undoubtably of significant importance, as are the issues at stake, the court held that CSU has sole access to the discovery — there is no other way for Mr. Abubakar to access the sought-after
information about President Tinubu’s diploma and education.
“These Rule 26 considerations
therefore support granting the request for discovery.
“This Court will not obstruct the flow of discovery solely within the possession of a U.S. institution on a matter of such importance when the respondent stands ready and willing to provide it.
“Because the Court concludes that Mr. Abubakar’s interest in the discovery outweighs President Tinubu’s privacy interests, and because the Court need not concern itself with any burden to CSU in making the production, the Court finds the final discretionary factor weighs in favor of granting the application.
“With three factors weighing in favor, and one neutral, the Court finds on balance the discretionary factors support granting Mr. Abubakar’s application.
President Tinubu did not specifically object to Judge Gilbert’s rulings with respect to the scope of the discovery requests, other than to generally state they are too broad.
“But even if he had, the Court independently finds the requests are appropriately tailored to seek relevant information. Mr. Abubakar did not object to the portion of Judge Gilbert’s ruling limiting the scope of his request for production four mentioned above, and at any rate, the Court agrees that asking CSU to conduct electronic discovery is neither justified nor feasible at this time.
“The Court therefore adopts Judge Gilbert’s ruling on the scope of the discovery requests. CSU must respond to Requests for Production Nos. 1 through 4, though CSU need not respond to the portion of Request No. 4 that seeks “all communications to or from CSU concerning the certification of such documents by Jamar C. Orr, Esq., during the period of August 1, 2022 to August 1, 2023.” (Dkt. 40 at 28.) As for the deposition, CSU must produce a witness that can address all five topics identified in the subpoena.
“For the foregoing reasons, the Court overrules President Tinubu’s objections to Magistrate
Judge Gilbert’s recommended ruling, and therefore adopts the ruling in full. Mr. Abubakar’s Application is therefore granted. In light of the pending Supreme Court of Nigeria deadline, represented to the Court as October 5, 2023, and based on CSU’s representations that it is ready to comply with the discovery requests and produce a witness, the Court sets an expedited schedule for completion of discovery.
“Respondent CSU is directed to produce all relevant and non-privileged documents in response to Requests for Production Nos. 1 through 4 (as narrowed by Judge Gilbert and adopted here) in Mr. Abubakar’s subpoena, by 12:00 p.m. (noon) CDT, on Monday, October 2, 2023.
“The Rule 30(b)(6) deposition of CSU’s corporate designee must be completed by 5:00 p.m. CDT on Tuesday, October 3, 2023. Given the October 5, 2023, filing deadline before the Supreme Court of Nigeria, the Court will not extend or modify these deadline.
