- Describe US legal battle as medicine after death
- If there’s forgery evidence, S’Court may review Tribunal judgement – PDP chieftains
BY BRIGHT JACOB
With the move by the People’s Democratic Party to have a court in the United States compel Chicago State University to release the academic records of Nigeria’s President, Bola Tinubu, some stakeholders in the opposition have said pressure may be mounting on the Supreme Court to disqualify Tinubu if the academic records he submitted to the Independent National Electoral Commission are found to be false.
Notwithstanding the fact that the United States District Court for the Northern District of Illinois, on Sunday,ruled in favour of the presidential candidate of the PDP, Atiku Abubakar, and ordered that President Tinubu’s academic records be released by CSU to the former vice president, many legal experts insist that the ongoing legal battle will likely be medicine after death, of no effect and absolutely inconsequential.
The candidate of the PDP in the February 25 presidential election, Atiku Abubakar, had contested but lost the election to his archrival, Tinubu.
He, however, rejected the result of the election and filed a petition at the Presidential Election Petitions Tribunal which sat in Abuja.
Atiku urged the court to declare him the winner because Tinubu was not qualified to contest for the office of president due to discrepancies in the latter’s academic records.
In the absence of this, Atiku also said the tribunal could order a rerun between him and the President.
Among the reasons for this was the failure of INEC to adequately upload results from various polling units on their portal, something the Mahmood Yakubu-led INEC promised to do prior to the election.
Hence, after weeks of grueling legal fireworks, the tribunal upheld Tinubu’s victory.
A five-man panel of Justices delivered their judgment on the disputed election on September 6, ruling unanimously that the umpire, INEC, is not mandated to electronically transmit election results on their Election Result Viewing platform, or IReV.
After the verdict, the members of the tribunal were berated for their decision about INEC’s Bi-Modal Voter Accreditation System or BVAS, a device used for capturing images of the polling unit result sheet or form EC8A and uploading the image on the IReV. The tribunal rendered inconsequential one of the most vital functions of the use of BVAS during the election.
This position of the tribunal triggered heated controversies as the BVAS had cost INEC billions of naira in taxpayers’ funds to acquire.
The action of INEC and the tribunal’s “rejected” verdict also left Atiku and the PDP disgruntled and set the stage for their work to restrategise on wresting power from the APC.
“A judgement against Tinubu by the American court would likely be “medicine after death, of no effect and absolutely inconsequential”
And likely foreseeing that the judgment of the PEPT would not be in his favour, Atiku had taken his fight to the United States of America and instituted an ongoing legal battle against Tinubu at the US District Court for the Northern District of Illinois in Chicago.
Atiku told the world that there were discrepancies between the information in Tinubu’s alma mater, Chicago State University’s documents and the information in the affidavit the former two-term governor of Lagos State submitted to INEC.
The former Vice President had, thereafter, prayed the court to order CSU to release Tinubu’s records to him.
Even though the court granted the request by ordering CSU to produce “all relevant and non-privileged documents” to Atiku within two days, Tinubu filed an emergency motion to stop CSU from releasing his academic records.
The latest in the back-and-forth has seen Atiku asking the court to overrule Tinubu’s objection.
A chieftain of the PDP, Anthony Okonkwo, who spoke to The Point, said the party had reasons to be suspicious of the President’s academic records in America.
Okonkwo, in his argument, said he hoped that the Supreme Court in Nigeria would give a favourable verdict if Atiku was able to prove in America that Tinubu submitted a false certificate to INEC.
Okonkwo, who is the National Secretary-General of the Atiku Support Organisation, also believes that the Supreme Court will be under pressure, both locally and internationally, because of the certificate saga.
He said any foul play should warrant Tinubu’s disqualification.
Okonkwo, however, noted that the president might be given “soft landing” and the apex court ordering a rerun election.
Okonkwo also argued that he was convinced that the evidence the court in America would provide, through the CSU, about Tinubu’s certificate being forged would leave the Supreme Court with no option but to “intervene”.
In his view, a situation that would bring “trouble” could be created in Nigeria if the court shirks from either disqualifying the president or holding a rerun election.
Okonkwo said, “Nobody knows what the Supreme Court will rule depending on what we are waiting for (US court judgment). If it is proven in America that Tinubu submitted a false certificate to INEC, the Supreme Court will be under pressure, both from the international community and Nigeria.
“What it will be is to disqualify Tinubu outrightly and then Atiku will become the president, but we are also looking at the fact that they might not do that, that the worst that can happen is that, to give Tinubu soft landing, they might call for a rerun election, and rerun is usually between number one and two. Yes, they might say the PDP and APC should go and do a rerun.
“If there is evidence the court in America will provide through the CSU that Tinubu’s certificate is forged or false, the Supreme Court would have no option but to intervene.”
“And if they decide not to intervene either by disqualifying Tinubu or holding a rerun, then they would have created a situation where Nigeria would be in some kind of trouble, and people would not accept such,” he added.Apart from the president’s academic records, which analysts say will put the Supreme Court under pressure to disqualify him, some Nigerians have also said that the #AllEyesOnTheJudiciary trend, which had been drawing attention to the judiciary before now, will also compel the Supreme Court justices to act forthrightly.
During the 9th Senate’s valedictory session, a Senator who represented Bauchi North Senatorial District, Adamu Bulkachuwa, 83, said his wife, a former president of the Appeal Court, between April 2014 to March 2020, Zainab Bulkachuwa, had extended help to some of his colleagues during her tenure as president.
Apart from these allegations, the Nigerian judiciary has been accused of being a cesspit of corruption with some Judges accused to have subverted justice for filthy lucre.
A senior lawyer, Fred Aigbaduma, when asked whether there would be reason for Nigerians to insist that all eyes must still be on the judiciary now that Atiku had taken his appeal to the Supreme Court, said, “Well, to a large extent, I would say yes “because it now behoves the apex court to redeem the image of the judiciary.”
“Not necessarily, because of the turn of the decision or the direction of the decision (of the PEPT), but (because) there were a lot of things that were muzzled in that decision,” he added.
Detailing what he opined was “muzzled” about the judgment, Aigbaduma said that some basic provisions of the constitution were affected by the decision of the tribunal.
In addition, he noted that the Electoral Act “appeared to have been buried” after INEC spent billions of naira on BVAS, only for the tribunal to say they were not necessary and that INEC had discretion and could do as it pleased as far as election matters or electioneering matters or announcement of results was concerned.
He said, “So, I believe some of these high points, what we call ratio decidendi, will be revisited because even some of the ratios of their decision are against the well-stated, clear and established position of the Supreme Court.
“The Supreme Court has to clarify some of these things especially on the basic law of the country, that is, the constitution, and some of its past decisions on electoral matters that these present decisions appear to have contradicted, to a large extent.”
“So, our eyes should still be on the judiciary. This time around, not only looking at them to reverse the decision in its entirety but to review some of the positions and invariably redeem the image of the judiciary,” he added.
The notary public of the Supreme Court also said that a lot of factors were pointing towards a battered image of the judiciary.
“There are some things happening now that I have never heard of in the history of the Nigerian judiciary, especially when it comes to electoral matters. You heard about this former Court of Appeal president’s husband, Bulkachuwa. We all heard what he said, but thank God that the ICPC is now after him and his wife.
“That (Bulkachuwa’s disclosure) is one of the things never heard of before. It means that most of the decisions of the election tribunals in most of the states, and especially at the federal level, were in one way or the other compromised.
Then, for the first time, all the tribunal justices, the five of them, concurred (in their verdict). They were unanimous on every of the pronouncement of the tribunal which also is a new precedent,” Aigbaduma lamented.
Asked whether the Supreme Court would be under pressure if a case of forgery was established against the President, owing to his academic records, Aigbaduma said that evidence not presented before a lower court, except with the consent of an appellate court, would be “difficult to bring in” at the higher court.
In his assessment, a judgement against Tinubu by the American court would likely be “medicine after death, of no effect and absolutely inconsequential.”
He also said that Atiku would also register the judgment in the court in Nigeria whenever it is available.
While saying that this would be herculean, Aigbaduma added that there were booby traps Atiku had to cross.
Tinubu to US court: Atiku on fishing expedition
Meanwhile, President Tinubu had urged the United States District Court for the Northern District of Illinois, Eastern Division, to reverse the order asking the Chicago State University to release his academic records to Atiku.
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 was seeking from the CSU could no longer be admitted at the current stage of the appeal he filed at the Supreme Court because the Presidential Election Petition Court had deemed them inadmissible.
“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,” he said.
“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”
He added that 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 the applicant is simply not ‘for use’ in the pending appeal and should not be permitted.”
He contended that Atiku’s insistence on being allowed access to his (Tinubu’s) academic records showed that he lacked an understanding of the effect of the decision by the Nigerian court.
US court orders CSU to release Tinubu’s academic records to Atiku
Meanwhile, the United States District Court for the Northern District of Illinois has ruled in favour of the PDP presidential Candidate, Atiku Abubakar, and ordered that President Tinubu’s academic records be released by the Chicago State University to the former vice president by Monday, October 2.
Judge Nancy Maldonado, in a copy of the judgment obtained on Sunday, said CSU raised no objection to Judge Jeffery Gilbert’s decision that the academic record be made public.
According to the court, any intrusion on Tinubu’s privacy interests in his educational records is outweighed by Atiku’s interest in the sought-after discovery.
Maldonado overruled Tinubu’s objections to Gilbert’s recommended ruling and adopted 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.
“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,” the memorandum opinion/order read in part.
