Chicago Varsity Record: Atiku’s Request Frivolous, Says Tinubu …Why judge halted release of president’s record

Is former Vice President Atiku Abubakar’s request that the academic records of President Bola Tinubu at the Chicago State University, US, be made available to him (Atiku) to enable him use them in his election petition case in Nigeria a genuine claim? That is the crux of the matter now before U.S. District Judge Nancy Maldonado.

Atiku had told Magistrate Judge Jeffrey Gilbert that he needed the records so he could file them at the Presidential Election Petition Court (PEPC) in Nigeria.

On the strength of his claim, the magistrate directed the university which Tinubu attended and whose certificate it presented to INEC, to release the records to Atiku by Thursday.

By the university rules, such information cannot be released to a third party when the owner of the record objects to its release. The exemption is when the court directs the university to do so.

Tinubu objected but the court, relying on Atiku’s claim that the records are germane in his case in Nigeria, directed the university to accede to the request.

On Thursday, Tinubu’s lawyer Christopher Carmichael, approached a higher court and debunked Atiku’s claim.

Carmichael in an emergency motion entitled, ‘Emergency motion to delay dispositive ruling number 23CV5099’ signed in the United States District Court for the Northern District of Illinois Eastern Division, said: “Intervenor asks this court to enter an immediate order delaying the effect of the magistrate’s order, at least until Monday, September 25, 2023, so the court may fully consider both the scope of the magistrate’s authority to issue the order without review, and the issue of whether the magistrate’s order was a correct application of the law to the facts presented.”

Read Also: U.S. court okays release of Tinubu’s academic records to Atiku
According to Tinubu, “Applicant (Atiku) is challenging an election that occurred in Nigeria in February 2023. Applicant filed his action under 28 U.S.C. § 1782 on August 2, 2023, after dismissing a similar Illinois State court action that was originally filed July 11, 2023.

“The limited time available is therefore due to the applicant’s decision to seek information utilising section 1782 six months after the election concluded. This court referred the applicant’s request to issue discovery to the magistrate. (Dkts. 6 & 7.)”

Carmichael said he was unaware until the issuance of the ruling directing CSU to release his records to Atiku that the magistrate intended to issue a binding ruling requiring compliance without any action by the court.

He added: “Considering the nature of applications for discovery under 28 U.S.C. § 1782, the Ninth Circuit concluded a magistrate may only report and recommend to a district judge, in CPC Patent Technologies PTY Ltd. v. Apple, Inc., the Ninth Circuit held.”

The lawyer told the court that Atiku lied in his claim that the records are vital to the case in Nigeria.

He alleged that Judge Jeffrey Gilbert breached the constitution by acting as a final court in such matters of discovery.

He asked the higher court to “enter an immediate order delaying the effect of the Magistrate’s order, at least until Monday, September 25, 2023, so the court may fully consider both the scope of the Magistrate’s authority to issue the order without review and the issue of whether the Magistrate’s order was a correct application of the law to the facts presented.”

In addition he told the court to stay the order as the records were not contained in the statement of claims filed by Atiku at the Supreme Court.

The records were not pleaded at the PEPC and so cannot be pleaded at the Supreme Court as it would amount to fresh pleading.

Tinubu’s lawyer claimed that Atiku misled the lower judge into believing that he could use the records at the Supreme Court.

Based on the contention of Tinubu’s lawyer, the appellate judge ordered a stay of the order of the lower court and asked the counsel of the President to file further particulars, if any, on the matter.

Advertisement

Tinubu’s lawyer is expected to file his brief on Monday, while Atiku’s has until 11:59 pm on Wednesday to object to it.

Tinubu’s lawyer will then file a reply, which should be in the court not later than 11:59 pm on Thursday.

Another judgment will then follow.

The Peoples Democratic Party (PDP) presidential candidate had,on Tuesday filed 35 grounds of appeal before the Supreme Court following the PEPC’s dismissal of his petition against Tinubu’s election.

The appellant is praying the apex court to set aside the September 6 ruling of the PEPC which he called a grave miscarriage of justice against him.

The PEPC, according to him, erred in law when it failed to nullify the presidential election on the grounds of non-compliance with the Electoral Act, 2022, even when evidence that was adduced before it showed that the Independent National Electoral Commission, INEC, acted in breach of extant laws and regulations guiding the conduct of elections.

He wants the court to determine that Tinubu was at the time of the election not qualified to contest the said election.

He prays the court to declare him winner of the February 25 election and be sworn in as the duly elected President of the Federal Republic of Nigeria.”

In the alternative, the PDP flag bearer is seeking an order directing the electoral commission to conduct a run-off between him and Tinubu.