Posted by From Laolu Akande, New York on
FOR failing to appear before a United States District court on Wednesday as ordered, former military ruler, Gen. Abdulsalami Abubakar, may well be on the way to incurring the trial judge's wrath.
FOR failing to appear before a United States District court on Wednesday as ordered, former military ruler, Gen. Abdulsalami Abubakar, may well be on the way to incurring the trial judge's wrath.
Similarly affected is his lawyer in the celebrated suit filed against him in the U.S. by some prominent Nigerian human rights activists, Mr. Emeka Ugwuonye.
Both Gen. Abubakar and Mr. Ugwuonye, who were required to appear before the trial judge, Mathew F. Kennelly, on July 12 for a status report on the five-year-old suit in Chicago, were absent.
Kennelly on Wednesday, therefore, ordered them to appear, once again, on July 26, this time to show cause why sanctions should not be meted out to them for failing to obey the June 28 order.
Penultimate Wednesday, the judge ruled that the plaintiffs in the case -- Chief Anthony Enahoro, Dr. Arthur Nwankwo and Miss Hafsat Abiola -- were free to proceed in the pursuit of a legal suit in the U.S. against Abubakar. He held, as prayed by the plaintiffs, that Nigeria could not provide an adequate judicial forum to pursue the suit. Abubakar had through his attorney argued that the plaintiffs had adequate judicial forum at home.
The General's attorney Ugwuonye, however, disclosed that he would request a reconsideration of the ruling and possibly pursue an appeal of the matter. By Tuesday, according to judicial records, he had already filed a notice of appeal in the Court of Appeal and another motion for extension of time.
The former military ruler is also believed to be beefing up his legal team by adding to it, Bruce Fein, a former U.S. Deputy Attorney General during the Ronald Reagan presidency. Fein is noted as a constitutional lawyer and an international consultant.
The Guardian learnt that the Nigerian government is also getting more interested in this case and may be asking for a meeting with the U.S. State Department. The Federal Government is believed to be considering the wider implications of the June 28 ruling, especially on the aspect that the Nigerian judiciary is not an adequate forum for legal remedies, which is the interpretation that the defendants are giving about the ruling.
The appeal filed by General Abubakar may however be a futile effort, according to the plaintiffs' counsel, Mr. Kayode Oladele, who has argued that the rules of procedure do not allow an appeal over a ruling, which is neither a collateral matter nor a final order of the court. According to the plaintiff's counsel, what the defendant can do is to reserve appeal for now.
The judge had on Wednesday expected both sides, through their counsel, to submit a joint status report as ordered on June 28. But, Oladele told the court that when he called Ugwuonye to initiate preparation of the joint status report, Abubakar's lawyer refused.
As a result of Abubakar's lawyer's absence in court on Wednesday, the U.S. Judge issued an order that both the lawyer and his client must appear before him on July 26.
The court records showed the judge as saying: "Defendant fails to appear. Status hearing held and continued to 7/26/2006 at 09:30 a.m. 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 a.m. 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 may be the threshold of the case, because Gen. Abubakar's failure 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 the five-year-old legal contest. While some of the plaintiffs in the case have made themselves available for deposition, the defendant's lawyer has persistently tried to halt the case on preliminary grounds.
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."
Also, the lawyer urged the court to note that Gen. Abubakar is a member of the National Security Council of Nigeria.
According to the counsel: "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 secrets 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 "if granted," he said, "will enable Abubakar to make these necessary consultations with the Nigerian government and obtain all essential clearances required under the laws of Nigeria."