US COURT ORDERS EX-NIGERIAN MILI

Nigeria's former Military Head of State General Abdusalami Abubakar has been ordered to appear for a deposition in court next month, specifically on the morning of April 13 by a US District Judge, Matthew Kennelly, failing which a default judgement would be entered against him.

Abubakar and three Nigerian plaintiffs, including nationalist Anthony Enahoro, Dr. Arthur Nwankwo and Hafsat Abiola have been locked in a civil suit since 2001 on alleged human rights violation against the plaintiffs while Abubakar was military ruler.

All since the 6 years, the issue of Abubakar facing court deposition has been a knotty one apparently due to Abubakar's unpreparedness to be deposed. Some of the plaintiffs have been deposed and in what seems like a last ditch attempt to prevent Abubakar from being deposed in this case, the federal government reportedly filed a case in an Abuja High Court seeking an order that Abubakar a former military ruler should not attend the US deposition.

In the originating summons, which plaintiffs lawyer, US-based Kayode Oladele received last week, the Federal Government named Gen. Abubakar as a co-defendant with the plaintiff attorneys Kayode Oladele, Austin Agomuoh and Akin Ogunlola in the case filed in Abuja.

According to Oladele, the suit did not include Abubakar 's lawyer also as a a co-defendant with the Plaintiffs attorneys, "a situation that reveals their real motive to disobey a U.S Court Order compelling Gen. Abubakar to be deposed and also to produce documents."

In Abuja the suit, the Federal government wants the Federal High Court, Abuja to perpetually enjoin Gen. Abubakar from divulging, transmitting or otherwise releasing any information of his involvement and actions or contributions to or in any meetings, minutes of meetings, discussions and happenings or events or occurrences of the Provisional Ruling Council (PRC) or the Supreme Military Council (SMC) or any other highest legislative/executive council of the Federal Republic of Nigeria.

The suit wants the former head of state ordered not to release any information for the entire period under question in the US case including but not limited to administrations of General Ibrahim Babangida and General Sani Abacha up and until May 29, 1999.

Such information the suit wants to compel Abubakar not to reveal are issues that are expected to dominate the deposition that the US Judge hearing the case has ordered since last year.

They include details and or information concerning any security operations and other initiatives to secure the country or to suppress, resist and diminish an opposition to the military governments of the day including but not limited to arrests, detentions, interrogations, detention locations or conditions including any known causes of injury or death and any security or medical reports regarding same or the methods or operations of the Nigerian Security Forces or agencies.

On the other hand, the federal government further prayed the Abuja High Court to perpetually enjoin the plaintiffs' lawyers as Nigerians to be refrained from what it believes are "illegal acts aimed at compelling Gen. Abubakar to disclose information or releasing documents which are inimical to the security and sovereign interests of the Federal Republic of Nigeria."

In fact the federal government in its originating summons asked the court to declare that efforts by the plaintiffs' lawyer to continue the case constitutes an "offence" under the Official Secrets Act.

But in his opinion dated March 19, in the motion brought by the plaintiffs to compel Abubakar and his attorney to explain why contempt charges should not be brought against them for refusing to attend the deposition earlier set for November last year, the US Judge Kennelly declared that he would defer ruling or consideration of contempt and instead set another date for Abubakar to be deposed, essentially giving the Nigerian head of state another chance for deposition before he would consider any sanctions.

On that day however, April 13, "if either Abubakar or his counsel fails to appear," the judge stated, "the court will on that date enter Abubakar's default, and will set the matter for a proove-up of plaintiffs' damages."

According to Kennelly after a thorough review of the history of this case, "The reason for the April date is that plaintiffs’ counsel first attempted to schedule the
deposition back in November 2006, and at this point the discovery cutoff date is fast
approaching."

Kennelly added that "given prior difficulties in this case with scheduling court appearances, and the claimed problems in scheduling the date for the November deposition of Abubakar, the Court is not going to leave it up to the parties. If either side’s counsel or Abubakar has a scheduling problem with that date, they have ample time to resolve it so that they can appear."

He warned that his court "will not entertain any motions to move the date, for whatever reason. Nor will it entertain any motions for protective order or otherwise to alter the scope of the deposition. The time for such motions came and went long ago (both in 2001, when the deposition was originally scheduled to take place in Detroit,
and in late November 2006, when it was scheduled to take place here).

Discussing the case in some details Kennelly stated that in dealing with Abubakar’s conduct, his court "does not write on a clean slate. Abubakar
and his counsel previously refused to appear on multiple occasions for his deposition when the case was still pending in the Eastern District of Michigan, despite their repeated commitments to do so. Their noncompliance reached the point that Judge Friedman entered a default judgment –from which Abubakar was saved only by what ultimately turned out to be his meritless personal jurisdiction defense."

Rebuking Nigeria's former military ruler and his counsel, and commenting on the case instituted in an Abuja High Court related to this matter Kennelly added that "the record of recent events reflects that Abubakar and his counsel have returned to their old ways. Abubakar’s counsel has made it clear to plaintiffs’ counsel that Abubakar has no intention of appearing for his deposition, despite his earlier commitments and the Court’s orders. Counsel’s apparently successful effort to get the Nigerian government to take action in that country are consistent with Abubakar’s apparent determination not to comply with this Court’s orders."

Kennelly submitted that the efforts of Abubakar’s counsel to procure the filing of the suit in Nigeria appear to amount to a last-ditch effort to prevent Abubakar from having to appear or face the consequences.

Said he : "In short, it is abundantly clear to the Court that Abubakar and his counsel have used, and will continue to use, whatever delaying tactics are necessary to evade this Court’s unequivocal order directing him to appear in this country for a deposition, as he had previously committed to do.

In a rather significant disclosure, Kennelly conceded that "Abubakar was not required to appear and defend this case – indeed, in most cases under the TVPA and the ATCA, non-US defendants simply do not respond." However he stated that the former military ruler chose to do so.

Said he: " After making that choice, Abubakar and his counsel made binding commitments, and the Court made binding orders, that Abubakar is not now entitled simply to wave away with his hand. "

The US judge said he has no desire to run afoul of the Nigerian justice system, "but our
responsibility is to follow the laws that apply to the present case, which was filed here and which Abubakar has willingly chosen to defend here."

He said compliance with the Court’s orders and with his obligations under the Federal Rules of Civil Procedure subjects Abubakar to sanction just like any other litigant, declaring that his court would be entirely within its discretion were it now to enter a default judgment against Abubakar.

According to him, "several warning shots have been fired in this case", already.

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