ABIOLA:U.S APPEAL COURT DISMISSED ABUBAKAR’S APPEAL

For Nigeria’s former head of military junta, Gen. Abubakar, the chickens have definitely come to roost and the days of reckoning are near in the rights abuse case brought against him in U.S court by elder statesman, Chief Anthony Enahoro, Hafsat Abiola and Dr. Arthur Nwankwo.  In a unanimous decision dated February, 9, 2007, a panel of three Circuit Judges, comprising of Justices Richard D Cudahy; Michael S. Kanne and Terrence T Evans dismissed the General’s appeal for lack of jurisdiction. This is the second time in a row that the embattled General would lose his appeals against the District Court’s decisions. In May, 2005, he lost his first appeal to the Seventh Circuit by a split decision and lost his bid for further appeals to the U.S Supreme Court when the latter upheld the argument of the Plaintiffs attorney Mr. Kayode Oladele  and denied his appeal without oral argument.

It could be recalled that after the evidentiary hearing in May last year in which Mr. Femi Falana, chair of the West African Bar Association (WABA) testified on behalf of the Plaintiffs and one Mr. Bayo Adaralegbe testified on behalf of Gen. Abubakar, the presiding Judge, Hon. Matthew F. Kennelly found that plaintiffs had satisfied their burden of proving that they did not have an adequate forum in Nigeria to pursue their claims. The Court found that under Nigerian law, specifically the Public Officers Protection Act, a three-month statute of limitations governed the plaintiffs’ claims because the claims are against a public official. At the time that period expired, the military regime that the plaintiffs allege committed the wrongs against them was still in power. The Court therefore, concluded that the Plaintiffs overwhelmingly established that during the time of that regime, military decrees barred Nigerian courts from calling into question the regime’s actions, and that “even if a courageous judge might have proceeded despite the military decrees, the military routinely ignored any occasional judgments that may have been issued against the government.”  The Court then ordered trial to proceed in the case.

Dissatisfied with this decision, Gen. Abubakar through his attorney, Mr. Ephraim Ugwonye filed the current appeal before the U.S Court of Appeals for the seventh Circuit in Chicago. However, before the Court of Appeals could come out with a briefing schedule on the matter, the team of Plaintiffs attorneys led by Kayode Oladele, with him, Augustine Agomuoh and Akin Ogunlola filed a motion praying the Court of Appeals to dismiss General Abubakar’s Appeal for lack of jurisdiction. In challenging the Court of Appeals’ jurisdiction to hear the appeal, Oladele’s team argued that the court must, as a threshold matter, ascertain whether it has jurisdiction over appeals from the District court’s interlocutory order. Plaintiffs’ attorneys further argued that generally, appeal may only be taken from a final decision disposing of an entire case entered on the District Court’s Civil Docket and the decision of the trial Judge not being a final decision was not appealable by Gen. Abubakar. They therefore prayed the Court to dismiss the appeal with costs.

In dismissing Gen. Abubakar’s current appeal, the Court of Appeals Justices agreed with the Plaintiffs submission and held that generally, an appeal may not be taken in a civil case until a final judgment disposing of all claims against all parties is entered on the District Court’s civil docket. The Court further noted that the district Court has not entered a final judgment in the present case and for good reason, Plaintiffs case continues in the District Court.  “Appellant Abubakar says that we should be able to review the denial of his affirmative defense of exhaustion of remedies based on the collateral order doctrine. The denial of remedies claim, however, is reviewable on appeal from the final judgment”, the Justices held. The Court further held that exhaustion of remedies are different from immunity claims noting that exhaustion requirements  do not create a right to be free from litigation like immunity claim; it only affects the “timing” of litigation. The Justices therefore, held that rejection of an exhaustion argument is not immediately appealable and dismissed Abubakar’s appeal.

googletag.cmd.push(function() { googletag.display('comments'); });

googletag.cmd.push(function() { googletag.display('content1'); });

googletag.cmd.push(function() { googletag.display('content2'); });