US Court Set to Release Tinubu’s Academic Records Today
*Gives CSU 12pm deadline to comply Sets expedited schedule for discovery
*Deposition of varsity designee must be completed by 5pm tomorrow
Alex Enumah in Abuja
A United States District Court for the Northern District of Illinois has ordered Chicago State University (CSU) to release the academic records of President Bola Tinubu to Nigeria’s former Vice President and the presidential candidate of Peoples Democratic Party (PDP), Alhaji Atiku Abubakar, unfailingly, by mid-day today, October 2.
The court ordered that deposition of the university must be completed by tomorrow, Tuesday, October 3.
The order followed Hon. Nancy Maldonado’s overruling of Tinubu’s objection to the release of his academic records at CSU to Atiku.
Maldonado’s order, which came after nearly two months of fierce legal fireworks in the US over the authenticity of the Diploma certificate paraded by Nigeria’s president, was expected to resolve all controversies over Tinubu’s educational qualifications, which had been raging for nearly three decades.
Maldonado, in her court judgement delivered on September 30, emphasised, “That it is expressing no view on the merits of Mr. Abubakar’s claims regarding President Tinubu’s graduation from CSU, or on the validity of the Nigerian election. Nor is the court taking any position on what any of the documents or testimony from CSU may or may not ultimately show.
“These are all matters for the Nigerian courts to resolve under Nigerian law, and it is not appropriate for this U.S. court to opine on such issues or attempt to predict how foreign courts might ultimately rule if and when they are presented with any evidence from CSU.”
The court, in its judgement on Tinubu’s objection to the release of his CSU records to Atiku, held that Magistrate Judge Jeffrey Gilbert was right in granting Atiku’s application for discovery.
While pointing out that Atiku met the statutory requirements and the discretionary factors supported granting the application, Maldonado held, “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.”
Besides, Maldonado agreed with the lower court that Atiku’s interest in the discovery outweighed Tinubu’s privacy interests, adding that the court needs not concern itself with any burden to CSU in making the production.
“The court finds the final discretionary factor weighs in favour of granting the application,” the judge stated.
Gilbert had on September 19, while delivering judgement in Atiku’s application for discovery, directed CSU, to produce and release within 48 hours certain documents and testimony related to Tinubu, which the institution claimed graduated in 1979.
Dissatisfied with the order, Tinubu had on the eve of the expiration of the order on CSU, approached the district court to temporarily halt the discharge of the order for discovery till September 25, when he would file his appeal against the order.
Among others, he had submitted before the district court that Gilbert erred in making the order and claimed that the lower court went beyond its mandatory duty of recommending to the district court to give a final judgement.
He also pleaded protection and privacy laws regarding the release of academic records in the US. In urging the district court to rescind the order of the magistrate court, he said the documents Atiku sought from the court were for mere expedition purposes, which could not be used at the apex court in Nigeria.
Tinubu, however, pleaded that if the district court was inclined to upholding the judgement of Gilbert, it should be limited to the Diploma certificate he submitted to the Independent National Electoral Commission (INEC).
But delivering judgement on Saturday, Maldonado upheld and adopted the judgement of Gilbert. The judge noted that Atiku’s case had merit, adding that the order cannot be limited to the Diploma certificate Tinubu submitted to INEC.
The judge held, “With three factors weighing in favour, and one neutral, the court finds on balance the discretionary factors support granting Atiku’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. Atiku 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.”
The district court explained that the issue presented before it was much more limited, and stated that under the applicable U.S. law and the federal rules of discovery, Atiku was entitled to the production of documents and testimony that he was seeking from the CSU.
The judge ruled on Atiku’s entitlement to the sought documents, “The court finds that he is. This decision is in line with the underlying purpose of 28 U.S.C. § 1782 to promote judicial assistance to foreign courts and comports with the liberal discovery standards under the Federal Rules of Civil Procedure, which encourage disclosure of potentially relevant information.”
She disclosed that in arriving at its conclusion, the court held that the magistrate court, contrary to Tinubu’s claim, did not give a final ruling, but only a “report and recommendation” subject to de novo review for any objected-to portions.
On Tinubu’s claim that Atiku could not use the academic records in his appeal at the Supreme Court, the district stated that it “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 Atiku could potentially inject the requested discovery into the foreign proceedings. Whether the Supreme Court of Nigeria will ultimately allow Atiku to use the documents, or whether it will consider them in its decision, are not questions for the court to resolve.
“The potential means for Atiku to use the discovery in the foreign proceedings is sufficient, and this court goes too far if it requires Atiku to show that his use must be successful.”
While overruling Tinubu’s objection, the court stated that Atiku “does not just question the authenticity of one diploma, but also questions whether President Tinubu actually attended and received any undergraduate degree from CSU at all, notwithstanding the fact that CSU has stated that President Tinubu did attend and receive a degree on June 22, 1979.
“In other words, while Atiku’s challenge to the election results is tied to the submission of an allegedly fraudulent diploma, he has raised other broader claims in the same proceedings before the Court of Appeal about President Tinubu’s identity and graduation, as well as the authenticity and origin of other CSU documents that were obtained and produced as part of other Nigerian proceedings.”
While adding that Atiku’s case was not limited solely to the authenticity of a single document, but rather generally raised questions about Tinubu’s (and CSU’s) assertions about his attendance and graduation, the court held that discovery on other documents from CSU related to the president’s attendance and graduation were relevant to his claims, and properly considered to be “for use in” the foreign proceedings.
The judge ruled, “The court, therefore, finds that the ‘for use in’ statutory requirement under section 1782 is satisfied. The court reiterates, as mentioned at the outset, that in reaching this finding the court is not taking a position on the merits of any of Atiku’s underlying claims as to the authenticity of the diploma submitted to the INEC, President Tinubu’s education and graduation, or the truth of what is or is not shown in any other CSU documents that have been produced in the Nigerian proceedings.
“Nor should the court’s opinion be read as taking any position on any of the broader claims as to the validity of the election or what the documents and discovery from CSU might or might not show.
“The court simply finds that Mr. Abubakar has cleared the relatively low hurdle of showing that the documents he seeks could be relevant to his claims (either proving them or disproving them) and could potentially be presented to the Supreme Court of Nigeria.
“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. Atiku’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 Atiku’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 deadlines.”
Atiku and PDP, which came second in the 2023 presidential election in Nigeria with 6,984,520 votes, is seeking the nullification of Tinubu’s presidency on the grounds of substantial non-compliance with the electoral laws, massive irregularities, and corrupt practices, among others.
The former vice president also claimed that Tinubu ought not to have contested the February 25 presidential election over alleged criminal offences bordering on forgery, perjury and possession of double citizenship.
However, a five-member panel of the presidential election tribunal, in their unanimous judgement delivered on September 6, dismissed Atiku and PDP’s petition for lacking in merit.
While the tribunal held that the petitioners did not prove allegations made against the conduct of the presidential poll, it refused to consider and determine the allegations of certificate forgery and perjury against Tinubu on the grounds that they failed to list the allegations in their main petition.
Bent on proving the allegations, Atiku, who was vice president between 1999 and 2007, approached the US court for additional evidence, which he hoped to tender before the Supreme Court of Nigeria, where he had already filed an appeal against what he claimed was a “perverse” judgement of the presidential tribunal.
He predicated his application on Order 2 of the Supreme Court Rule, which stipulates, “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 fact on which the party relies for making it and of the nature of the evidence or the document concerned.
“It shall not be necessary for the other party to answer 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.”
In the application filed on August 2, Atiku had requested for an order of mandamus compelling the CSU to release information regarding Tinubu’s record. He 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 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.
He had specifically requested for four document, seeking true and correct copies of: (1) an example of a CSU diploma for a Bachelor of Science degree issued in 1979; (2) President Tinubu’s diploma issued in 1979; (3) any examples of a CSU diploma that “contains the same font, seal, signatures, and wording (other than the name of the recipient and the specific degree awarded)” as the copy of the diploma that was purportedly issued to President Tinubu on or about June 22, 1979; and (4) certain other CSU documents that were apparently certified and produced by Jamar Orr (an associate general counsel at CSU) in other Nigerian proceedings, as well as communications relating to these documents (the “Orr Documents”).
In addition, Atiku sought for a deposition by CSU pursuant to Federal Rule of Civil Procedure Rule 30(b)(6), seeking to explore five topics through deposition: (1) the authenticity of the documents produced by CSU in response to the application and how and where CSU located the documents; (2) CSU’s position on the authenticity of other CSU documents related to Tinubu purportedly produced by CSU in another Nigerian proceeding (“Enahoro-Ebah v. Tinubu”); (3) the contents of an affidavit from CSU’s registrar Caleb Westberg; (4) CSU’s position on the authenticity of a letter from Westberg (the “Westberg Letter”) on CSU letterhead regarding Tinubu, including who requested the letter, who prepared the letter, and to whom it was sent; and (5) CSU’s position on the authenticity of the Orr Documents and other facts regarding why the documents were certified, if Mr. Orr was authorised to do so, who requested the documents, and to whom they were sent.
