14 Jul 2006 |
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LAOLU AKANDE NEW YORK For failing to appear in court for a scheduled hearing two days ago-July 12- in a US district court, Nigeria's former head of state General Abdusalami Abubakar and his attorney Emeka Ugwuonye have both been ordered by US district Judge Mathew F. Kennelly in Chicago to show cause why sanctions should not be meted out for the General's refusal to file a status report as ordered by the court about two weeks ago. It would be recalled that on June 28, about 2 weeks ago, the US Judge ruled that the plaintiffs in this case, Chief Anthony Enahoro, Dr. Arthur Nwankwo and Miss Hafsat Abiola are free to proceed in the pursuit of a legal suit in the US against the former head of state since Nigeria did not provide an adequate judicial forum to pursue the suit. General Abubakar through his attorney has argued that the plaintiffs had adequate judicial forum in Nigeria. So dissatisfied with this ruling was the General that his attorney Ugwuonye had vowed to request a reconsideration by the Judge and possibly pursue an appeal of the matter. By Tuesday, according to judicial records, Abubakar had already filed a notice of appeal in the court of appeal and filed another motion for extension of time. In deed, the former head of state is also believed to be beefing up his legal team by adding to it, Bruce Fein, a former Deputy Attorney-General of the US during the presidency of Ronald Reagan. Fein is noted as a constitutional lawyer and an international consultant. Reliable sources have also hinted that the Nigerian government is getting more interested in this case and may be asking for a meeting with the US State Department over what the Nigerian government considers as the wider judicial implications of the ruling two weeks ago, which may have implied that the Nigerian judiciary is not an adequate forum to legal remedies, which is the interpretation that the defendants are giving the ruling. The appeal filed by General Abubakar is however a futile pursuit according to Kayode Oladele, attorney for Chief Enahoro, Dr. Nwankow and Hafsat. Oladele noted that the rules of procedure does not allow an appeal over a ruling which is not a collateral matter nor a final order of the court. The plaintiffs counsel observed that what the defendant can do is to reserve appeal for now. However status hearing was fixed for Wednesday, July 12 and the Judge had expected both sides through their counsels to submit a joint status report. But according to the Plaintiffs' lawyer Kayode Oladele, when he called Abubakar's lawyer to initiate preparation of the joint status report as ordered by the court, Abubakar's lawyer refused and called his bluff using expletives. As a result of Abubakar's lawyer's absence to appear in court Wednesday, the US Judge issued an order that both the lawyer and his client-the former head of state must appear before him on July 26. According to the order made available to this reporter "Defendant fails to appear. Status hearing held and continued to 7/26/2006 at 09:30 AM. Plaintiff's motion for leave to file a separate status report is granted. Defendant and his attorney, Ephraim Ugwuonye, are ordered to appear on 7/26/2006 at 9:30 AM. to show cause why he should not be sanctioned for failure to file a status report as ordered and for failure to appear today." The order by the Judge to have the former Nigerian head of state appear before him later in the month may in fact be the threshold of the case because the failure of the former head of state to appear may force the court to issue a sanction on him, a scenario observers say would certainly show some judicial teeth or lack of it in this 5-year old legal contest. While the some of the plaintiffs in this case have made themselves available for deposition, the defendant is yet to be deposed as his lawyer has persistently tried to halt the case on preliminary grounds, the latest of which was the ruling by the court two weeks ago granting leave to the plaintiffs to sue the former head of state in the US. In his motion for extension of time to comply with the Judge's order on status report, Abubakar's lawyer said "that by their very nature, discovery issues of the kind that the court expects to be resolved at this stage of this action requires Defendant’s counsel to consult with Defendant to ascertain Defendant's availability. Defendant, who is resident in Also Abubakar's lawyer claimed that the former head of state is a member of the National Security Council of Nigeria, a claim whose veracity cannot be confirmed since the former General is only publicly known as a member of the National Council of States which membership consists of former heads of states. According to him " That Defendant, who is a member of the National Security Council of Nigeria is duty bound to formally consult with or notify the Government of Nigeria before participating further in discovery. The reason is that the matters that are likely to come up in discovery may involve official privileges of the Nigerian state and the official secretes of the state, including the details of the voting patterns of the members of the Provisional Ruling Council (the highest organ of the Nigerian Government) between 1984 and 1999, as well as the details of the deliberations of the Federal Executive Council of Nigeria within the same time period." Considering this, Abubakar's lawyer asked for an extension of time, which he said "if granted, will enable Abubakar to make these necessary consultations with the Nigerian government and obtain all essential clearances required under the laws of Commenting on the court order to Abubakar and his lawyer to appear in court and show cause why he-Abubakar- should not be sanctioned, Oladele said "the Court was simply not impressed by their disobedience to its order and the reasons they gave for their failure to obey the order." He added that "we are aware that the General filed an appeal with the Sixth Circuit Court of Appeals on Monday this week. We think it is a bad idea because they are not going to get anywhere with it. To start with, this is an interlocutory verdict that is neither a final decision nor a collateral order. The U.S legal system does not allow for piecemeal litigation."
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