A Siesmic Collapse Of The Tinubu’s Scheme?

By Emeka Ugwuonye, Esquire

It is called a Deus ex Machina in the classical analysis of drama. When the plot of a play cannot be resolved usually because the playwright has dribbled himself out of control, it will take a god to intervene, to practically come onto the stage and resolve the plot. Hence, “Deus ex Machina is now the phrase used to describe any situation where something unexpected or implausible is brought in to the story line to resolve situations or disentangle a plot. The resolution could come from a new character, device, or event”. This is exactly the situation President Tinubu, the master dribbler, faces now with the judgment of the US District Court in Chicago.

I have been following the case of Atiku v. Tinubu in Chicago rather closely. The direction of the judicial analysis in that case actually provides the Supreme Court of Nigeria the strongest impetus to reject the reasoning and analysis of the Court of Appeal that declared Tinubu the winner. If you noticed, the Nigerian Court of Appeal had ruled on the issue of Tinubu’s disqualification based on technicality. It ruled that the issue was not properly raised by Atiku, which was indeed a technicality-based judicial reasoning. When that issue was raised in Chicago (that Atiku did not properly raise the issue in the Nigerian Court), the Chicago Court rejected that technicality-based objection. It refused to accept the technical argument. It held that the issues are far too important for a mere technicality to be allowed to control the outcome. It was a stern rebuke on the judges of Court of Appeal.

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The decision of the Chicago Court to reject the technicality-based argument has placed the Nigerian Supreme Court in a tight corner. It will be outrageous now for the Supreme Court to ignore the liberal and more logical analysis of the Chicago Court and revert to the primitive reasoning of the Nigerian Court of Appeal.

Such a massive shift from technicality-based judgment to merit-based judgment will affect other appeals where the judgment of the tribunal was be based on technicality. A good example is the case of Enugu State governorship petition where the tribunal refused to disqualify Peter Mbah just because the forged certificate tendered was not the certified version.

So, I’m actually elated with the events in Chicago. The implication is that hiding behind technicality is something the Supreme Court must be very wary of going forward. It is no longer safe to hide behind technicality on a case of such importance.

Note the following analysis of the Chicago Court. But what does this mean for Tinubu? We believe that there were forgeries in his certificate which is why he is fighting so desperately to block its release. If so, it is the end of the road for him. It will go beyond the presidential election and touch on his entire legacy. It means that his presence on the Nigerian political stage since 1999 has been based on deception and fraud.
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B. Factual Background to Application:

Against this backdrop, the Court turns to the facts of the instant application under § 1782. Unless otherwise noted, the Court takes the background from the parties’ submissions to Judge Gilbert, as summarized in his Memorandum Opinion and Order. (Dkt. 40.) The Court has also considered any additional facts presented in the parties’ briefing on President Tinubu’s objections.

Atiku Abubakar was Vice President of Nigeria from 1999 to 2007 and ran for president in Nigeria’s presidential election in February 2023. After the election, the INEC declared that Bola Ahmed Tinubu had won, and he is now serving as the current president of Nigeria. In March 2023, Mr. Abubakar, along with the People’s Democratic Party, filed a petition challenging the results of the election with the Court of Appeal in the Presidential Election Petition Court in Nigeria (“Court of Appeal”), which is the initial court of review for election disputes. Mr. Abubakar’s petition was one of several challenges filed by different parties challenging the election results. Mr. Abubakar contends that his petition with the Nigerian Court of Appeal includes, among other
disputes, a claim that President Tinubu submitted a forged diploma to the INEC indicating that he had received an undergraduate bachelor’s degree from CSU. Mr. Abubakar asserts that, under Nigerian law, the submission of a fraudulent document to the INEC would have disqualified now President Tinubu from participating in the election, thus invalidating his victory.

According to President Tinubu, Mr. Abubakar’s original petition to the Nigerian Election Court stretched some 200 pages and largely focused on issues with vote tabulation, but did not raise any claims that President Tinubu was disqualified due to the submission of fraudulent documents to the INEC. (Dkt. 44 at 2; Dkt. 5-2.) Instead, President Tinubu asserts that Mr. Abubakar only raised the disqualification issue, and the claim of a fraudulent CSU diploma, in his reply submissions to the Court of Appeal after President Tinubu had filed a response. (Dkt. 44 at 3; Dkt 22-4.) Mr. Abubakar responds that he did generally challenge President Tinubu’s qualifications in his opening petition, but he admits that he did not raise any specific claims regarding President Tinubu’s education or graduation from CSU until his reply. (Dkt. 45 at 6–7.)

On August 2, 2023, while Mr. Abubakar’s petition was still pending before the Nigerian Court of Appeal, he filed the instant application in this Court pursuant to 28 U.S.C. § 1782. (Dkt. 1.) Mr. Abubakar’s application seeks an order to obtain discovery from CSU for use in the ongoing Nigerian proceedings. Specifically, Mr. Abubakar seeks discovery related to the authenticity of the diploma President Tinubu submitted to the INEC, as well as other records and testimony from CSU that Mr. Abubakar says are related to that same challenge.

On September 6, 2023, while Mr. Abubakar’s application was pending before this Court, the Nigerian Court of Appeal issued a ruling rejecting Mr. Abubakar’s petition and finding in favor of President Tinubu. The ruling rejects Mr. Abubakar’s attempts to raise the disqualification issue, stating that Mr. Abubakar’s factual claims about allegedly forged documents, among other allegations of “non-qualification,” were improperly raised for the first time in his reply brief, and needed to have been contained in the original petition. (Dkt. 44 at 4; Dkt. 34 at 557–562.)

On September 18, 2023, Mr. Abubakar filed a notice of appeal of the Court of Appeal decision with the Supreme Court of Nigeria. (Dkt. 44-1.) The notice of appeal covers a number of challenges to the Court of Appeal decision, including the specific finding that it was improper for Mr. Abubakar to attempt to raise new facts and arguments for the first time in his reply related to President Tinubu’s qualification for office.