President Bola Tinubu has urged the United States District Court for the Northern District of Illinois, Eastern Division to reverse the order asking the Chicago State University (CSU) to release his academic records to a political opponent, Atiku Abubakar of the Peoples Democratic Party (PDP).
Tinubu argued that Magistrate Jeffrey Gilbert, who gave the September 19 order while ruling on an application by Atiku, lacked any such power under Section 1782 of the US Statute.
He therefore asked Honourable Nancy L. Maldonado to reject Atiku’s application.
The prayers formed part of Tinubu’s reply to Atiku’s response to his (Tinubu’s) objection to the execution of Magistrate Gilbert’s order in an application for discovery filed by Atiku.
Tinubu’s lawyer, Christopher Carmichael, who filed the reply, said the Magistrate “erred in granting the application and ordering Chicago State University to comply with the subpoenas for documents and a deposition.”
“The ruling should be set aside and the application denied,” Carmichael said.
Atiku, he argued, was merely on a fishing expedition because the documents he is seeking from the CSU can no longer be admitted at the current stage of the appeal he filed at the Supreme Court because the Presidential Election Petition Court (PEPC) had deemed them inadmissible.
He said: “The discovery sought here, with one narrow exception, is not ‘for use’ in the pending appeal, and the Nigerian courts were unequivocally hostile to the discovery.
“Application of the principles of comity and parity included in Section 1782, require that the Nigerian decision be given effect and that the application be denied.”
Continuing, he said the US federal rules “also do not permit a fishing expedition to challenge established fact, and that is a further reason to deny the application.”
Tinubu faulted Atiku’s argument that the order by Magistrate Gilbert was not final because it was made in furtherance of an underlying suit, contending that it was final and required a review de novo.
“Here, the Magistrate entered a ruling that purported to be a final decision that ended the dispute, and ordered compliance. A magistrate cannot enter such a decision. The review should be de novo,” he said.
Tinubu drew the court’s attention to Atiku’s admission in his filings that some of the documents being sought are for use in related proceedings, which implies that he does not require them for the pending appeal at the Supreme Court.
He noted that “related proceedings,” as stated by Atiku, “are not the proceedings the application is based upon, and applicant (Atiku) cannot invoke Section 1782 for other proceedings.”
Section 1782, according to Tinubu, does not “provide authority for foreigners to authenticate documents they find in public records.”
“The discovery sought by applicant is simply not ‘for use’ in the pending appeal and should not be permitted.”
He contended that Atiku’s insistence in being allowed access to his (Tinubu’s) academic records showed that he lacks an understanding of the effect of the decision by the Nigerian court.
His words: “The Nigerian court decision precluded applicant from asserting the theory he seeks to support with discovery here.
“Applicant’s response notes but ignores the fact that he included only a single, general sentence about Intervenor being ‘not qualified’ in his 200+ petition in Nigeria.
“The Nigerian court made it clear that applicant’s conduct precluded him from asserting any facts surrounding that generalised statement.
“Applicant’s failure to include supporting allegations to flush out the general statement in his petition forecloses any opportunity to try to submit new material to the Nigerian Supreme Court.
“A foreign court’s decision to bar the discovery sought should not present an opportunity for the applicant to seek that very same discovery.
“Intervenor (Tinubu) has clearly established that granting the application would undermine the judgment of the Nigerian court by allowing applicant to do what the Nigerian court prohibited him from doing. That should preclude the discovery.
“The judgment of the Nigerian court was an authoritative statement of the unreceptivity to the discovery that should end the quest here.
“The applicant, and the Magistrate, asserted that the Nigerian court’s decision should be effectively nullified because applicant can appeal.
“There is nothing in Section 1782 suggesting that discovery should be permitted anytime a losing party can take an appeal in the foreign jurisdiction.
“The issues of comity that the Supreme Court directed courts to consider would become a nullity if the applicant’s and the Magistrate’s logic prevailed.”
Besides, Tinubu argued that as against the impression created by Atiku, who sought to be allowed unfettered access to his academic records, the US Federal Rules still apply to Section 1783 applications and those procedures can limit the scope of discovery.
He added that the Federal Rules, such as Rule 26, do not afford the applicant unfettered discovery.
Tinubu said that Atiku’s attack of the authenticity of his certificate was a self created confusion on his (Atiku’s) part despite the confirmation by the CSU that he actually graduated from the university.
He noted that Atiku’s “basis for doubting the diploma is his interpretation of proper comma placement and inability to read a signature.
“That speculation can be contrasted with established fact – that Nigerian President Bola A. Tinubu graduated from Chicago State University with a degree in 1979.
“Despite the affidavit from CSU, the applicant persists in doubting facts, not unlike another domestic presidential candidate.
“Unlike that domestic presidential candidate, whose lawsuits were never allowed discovery on such a flimsy basis, applicant asserts that he can obtain discovery merely by ‘questioning’ established fact. That is not a basis for discovery.
“Applicant’s identification of ‘other documents’ as another area for discovery is based on other proceedings and material that applicant claims has filtered into the public record.
“Applicant then offers the refrain that ‘nobody should oppose this discovery,’ despite the political intrigue opposition figures were able to create with the documents.
“Enahoro-Ebah’s illegal subpoena and the typographical error in creating a new diploma, is an example of the harm that can arise when someone is allowed to rummage through another’s records.
“Congress and the Illinois General Assembly created protections for educational records that should not be so lightly pushed aside for what appears to be foreign political opposition research. The proposed discovery of ‘other documents’ should be precluded.”
It was gathered that the judge will now consider what the parties have filed and deliver judgment. The parties need not appear to address the court on what they have filed.
The court’s clerk confirmed yesterday in a Notification of Docket Entry that briefing on Intervenor’s (Tinubu’s) objections to Judge Gilbert’s order “is now complete.”
He said: “The Court will endeavor to issue a written ruling as soon as possible. Separately, the Court notes that Court staff has received extensive email communications from members of the public related to this case.
“The Court understands the significant public interest in this dispute, but the Court will not consider any third party or ex parte submissions.
“Rather, the Court’s review will be limited to the parties’ briefing and the official record on the docket.”