CSU ordered to release Tinubu’s non-privileged documents to Atiku
By Yusuf Alli and Eric Ikhilae, Abuja
A United States District Court in the Northern District of Illinois has directed the Chicago State University (CSU) to produce non-privileged documents on President Bola Ahmed Tinubu to ex-Vice President Atiku Abubakar.
But the court said it will not take a position on Atiku’s claims on the authenticity of the documents, which Tinubu submitted to the Independent National Electoral Commission (INEC) to contest the last presidential election.
The decision, rendered on September 30 by Justice Nancy Maldonado, overruled the objection raised by Tinubu against the September 29 order by Magistrate Jeffrey Gilbert and proceeded to affirm Gilbert’s ruling directing the CSU to comply with Atiku’s request made on August 2 for the release of some documents relating to Tinubu’s academic records in the school.
The order reads: “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 deadlines.”
On Atiku’s other prayers, the court said it will not take a position on the authenticity of the documents, which President Tinubu submitted to INEC to contest election.
The judge said:” The Court therefore, finds that the “for use in” statutory requirement under § 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 Mr. Abubakar’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.”
Atiku had challenged Tinubu’s election before the Presidential Election Petition Court (PEPC) through a petition in which he merely claimed that Tinubu was not qualified to have contested the election, without providing any particulars of his alleged non-qualification, a defect Tinubu raised in his reply to the petition.
He however, attempted to introduce fresh evidence in his response to Tinubu’s reply by calling as a witness an Abuja-based lawyer, Mike Enahoro-Ebah, through whom he tendered some documents he claimed were obtained from CSU about Tinubu.
The PEPC, in its judgment on September 6, rejected the fresh evidence Atiku attempted to introduced on the grounds that they were not filed along with the petition, a decision he appealed, among other grounds, before the Supreme Court.
Before the PEPC judgment, Atiku had on August 2, applied to the US to compel the CSU to allow him access to Tinubu’s academic records, which he claimed, was needed to boost his appeal at the Supreme Court.
In the September 30 judgment, Justice Maldonado found, among others, that Tinubu did not prove that the Nigerian Supreme Court can no longer obtain additional evidence from Atiku under “exceptional circumstances.”
The court added: “Here, while there is evidence of the Court of Appeal’s non-receptiveness to the ‘non-qualification’ evidence, there is nothing in the record, other than rhetoric, from which the court can make a determination as to whether the Supreme Court of Nigeria will ultimately be receptive to any additional evidence Mr. Abubakar seeks to introduce.
“It is true that Mr. Abubakar himself has admitted that the ‘exceptional circumstances’ standard for the submission of additional evidence is ‘demanding.’ And it may be, as President Tinubu repeatedly suggests, that Mr. Abubakar will ultimately be unsuccessful in convincing the Supreme Court of Nigeria to consider such new evidence in light of the holding of the Court of Appeal.
“But again, President Tinubu has not contested that the mechanism exists for Mr. Abubakar to try to make the argument to the Supreme Court of Nigeria that there are exceptional circumstances that justify the introduction of the evidence he is seeking from CSU.
“There is simply no evidence to suggest that the Supreme Court of Nigeria must necessarily reach the same result as the Court of Appeal.
“Further, this court would be improperly intruding into Nigerian law if it made any determination or prediction as to how the Supreme Court might rule on the ultimate question of whether to adopt the Court of Appeal’s approach, or whether to allow the evidence under exceptional circumstances.
“To do so would require the court to improperly consider the ultimate admissibility of the evidence sought, which it may not do.”
In further affirming the findings by Magistrate Gilbert, Justice Maldonado noted that Gilbert “found that the discovery requests were reasonably tailored to obtain information for possible use in support of Mr. Abubakar’s appeal to the Nigerian Supreme Court, and that Mr.
Abubakar’s interest in obtaining the discovery outweighed President Tinubu’s privacy rights in the materials, because he had put his diploma at issue by submitting it to the INEC.
“Judge Gilbert ordered that the application be granted, though he did limit the scope of one of Mr. Abubakar’s discovery requests.”
“Specially, Judge Gilbert narrowed Mr. Abubakar’s fourth document request above, excluding the request for any and all communications concerning the Orr Documents because it would call for time-consuming and burdensome electronic discovery that was particularly infeasible in light of the looming court deadlines.”