US Court Restrains EFCC & Adefunye on Ugwuonye

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Published on Thursday, 28 June 2012 15:38

Written by Admin

A US court based in Washington DC Court has indirectly restrained Nigeria’s Economic and Financial Crimes Commission, EFCC and Nigeria government from re-arresting Mr Emeka Ugwuonye whenever he travels to Nigeria. At a hearing on Monday, June 25, 2012 in the case the Nigerian government filed against Emeka Ugwuonye in

Washington DC, being a the civil case the Embassy of Nigeria filed in 2010 before the EFCC turned around, arrested and detained Ugwuonye for several months in Nigeria on February of 2011, Ugwuonye who is already facing multiple cases against the EFCC in Nigeria, made an oral motion to stay the case in Washington until the completion of the case in Nigeria to avoid a situation where he gets arrested in Nigeria and the case in Washington is pursued behind him. The judge while denying the motion placed a legal obligation on the plaintiff to advise the court if he get detained again in Nigeria so that the court would stay the case. 

The Judge also rendered decisions on five other applications including that of the plaintiff. BELOW are excerpts from the court’s judgement: 

Case 1:10-cv-01929-BJR Document 70 Filed 06/26/12

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

EMBASSY OF THE FEDERAL REPUBLIC OF NIGERIA,

Plaintiff

v.

EPHRAIM EMEKA UGWUONYE,

et al.

Defendants.

Civil Action No. 10-1929 (BJR)

ORDER

Upon consideration of the parties’ representations made in open court on June 25, 2012, as well as the entire record of this case, the court ORDERS as follows:  

(1) As to the issue of representation for defendants ECU Law and ECU Associates, by July 10, 2012, Defendant Ugwuonye shall file a motion to dismiss ECU Law and ECU Associates. Plaintiff, in its Opposition, may include a cross-motion for default judgment.  

(2) Defendant Ugwuonye’s Motion for Reconsideration of the Court’s Order Dismissing his Counterclaims is hereby GRANTED. Defendant Ugwuonye’s Opposition to Plaintiff’s motion to dismiss the counterclaims is due by July 10, 2012. Plaintiff’s Reply will be due July 17, 2012.

(3) Defendant Ugwuonye’s oral motion to stay this case pending the resolution of criminal matters in Nigeria is hereby DENIED. If Defendant Ugwuonye misses any filing deadline, Plaintiff Embassy shall make inquiries with the Nigerian government as to whether Defendant Ugwuonye has been detained in Nigeria and shall notify the court forthwith as to the results of its inquiry. In the event Defendant Ugwuonye is detained, the court will reconsider whether the case should be stayed. 

4) Defendant Ugwuonye’s Motion for Contempt and/or Sanctions is hereby DENIED without prejudice.  

(5) Plaintiff’s Request for a Protective Order is hereby DENIED, insofar as it seeks to preclude all comments about this case. To the extent that the request seeks to keep confidential any privileged information, Defendant Ugwuonye, as an officer of the court, assures the court that he will not reveal privileged information. If Defendant Ugwuonye believes that certain information may be exempt from privilege, he shall – prior to releasing the information – submit a sealed motion seeking the court’s permission to release the information.  

(6) Plaintiff’s request for supervised depositions is hereby GRANTED. The court refers this issue to a magistrate judge. Parties shall contact the assigned magistrate judge once depositions are scheduled.

SO ORDERED.

June 26, 2012

BARBARA J. ROTHSTEIN

UNITED STATES DISTRICT JUDGE

Case 1:10-cv-01929-BJR Document 70 Filed 06/26/12 Page 3 of 3

The Monday hearing is known in America a Status Hearing of Status Conference. It is an opportunity for the court to rule on all the preliminary mattes and set the case for discovery and other procedural steps or events toward a jury trial. 

Elombah.com gathered that when all parties appeared in court on Monday, with Ugwuonye representing himself, there were several preliminary issues pending. The most significant of them was how the court would deal with the fact that Nigerian Government arrested and detained Ugwuonye in Nigeria after it had filed the case in DC. Ugwuonye argued that they detained him in Nigeria not because he actually committed any offense known to Nigerian law. Rather they locked him up in Nigeria to prevent him from disclosing information harmful to the government before the 2011 elections. Also, he argued that they detained and tortured him in Nigeria while trying to win the case in DC in his back. Ugwuonye therefore asked for sanctions against Nigerian Government for detaining him in Nigeria with intent do deny him access to the DC court. He also asked for $50,000 dollars for each night he was detained in Nigeria. He asked for some evidentiary hearing to enable the court ascertain the conditions he faced in Nigerian detention cell.

The court was determined to make sure that Nigerian Government would not detain Ugwuonye in Nigeria while pursuing this case in Washington DC. But it would have been impossible for the American Court to directly restrain Nigerian Government or to issue an injunctive order against Nigeria in a direct manner. The alternative was to found in response to Ugwuonye's oral motion for a stay of the Washington case. Judge Barbara J. Rothstein of the United States District Court for the District of Columbia (a court equivalent in hierarchy to the Abuja Federal High Court) ruled that if Nigeria ever detained Ugwuonye again while this case is pending, the court needed to be advised of such development. To ensure that Ugwuonye did not get detained again in a manner disruptive of the case, the judge ordered the lawyer representing Nigerian Government to advise the court immediately and if Ugwuonye was detained again. That would also mean that the American lawyer would have to explain to the court the reasons or justification for such detention. That will be really interesting. The court is indirectly directing Nigeria to put on record reasons for arresting Ugwuonye.

Many people familiar with this complex legal issue of a foreign government in American court all conclude that the decision of the judge is an indirect restraining order against Nigeria. Maybe not exactly, but legal analysts say it is clear that the EFCC or SSS or Nigerian Police cannot arrest Ugwuonye again without weighing in their minds the fact that the American court is now watching them and would be demanding to know why. There has to be an explanation for such arrest and the court will not allow this case to proceed against Ugwuonye while detained in Nigeria. And in such event, Ugwuonye's motion for sanctions could be reinstated for a ruling. No doubt, the order of the court has taken away the possibility of the Nigerian Government using detention as a way to gain advantage over Ugwuonye in court. Also, the court granted Ugwuonye the right to file all motions he missed last year due to his detention in Nigeria. There was a subtle dramatic moment when the judge looked at Ugwuonye and asked him: "Why do you have to go back there?", wondering why any reasonable person faced with all that he had suffered would bother to return to Nigeria. But Ugwuonye advised the court that he could not avoid going back to his country. He informed the court that for the sake of his family and his people, he must keep returning to Nigeria. That was consistent with his position all along. Several times outside the hearing, Ugwuonye had repeatedly stated that the goal of the Government of Nigeria was to force him out of Nigeria. But he said he would rather die in Nigeria than to stay away from his father land. 

Another important decision of the court on Monday had to do with Nigerian Government's efforts to gag Emeka Ugwuonye. Apparently, the Government is afraid that Ugwuonye knows too much about Nigerian Government officials having been their lawyer in the US for over 8 years. The Nigerian officials are afraid that if Ugwuonye were to speak freely on what he knows, there could be problems and massive embarrassment for the Government. Particularly worried is the Nigerian Ambassador to Washington as the Embassy is facing investigation for sundry matters. The Government's lawyer begged the court to zip Ugwuonye's mouth. But the court refused. 

Ugwuonye is free to speak provided he complies with the standard rules guiding lawyers on matters of privileges and confidentiality, the court ruled. But these rules are fraught with many exceptions. Indeed, one such exception was raised summarily in court on Monday. That had to do with the fraud exception or the exception that has to do with continued criminal conduct. That is to say: if your client  continues to commit crime after the lawyer initially discovered that and warned the client, the lawyer is not bound to conceal subsequent criminal conduct of his client. So, there are several actions and conducts of Nigerian officials that may fall into that category. The judge agreed that such exceptions exist. But in uncertain situations, the judge would rule on any dispute over that question. Invariably, the Government of Nigeria failed to silence Emeka Ugwuonye from speaking against its officials.

The case is now set for further development. It is believed that Emeka Ugwuonye would be joining several Nigerian officials, including President Obasanjo as parties to the suit. Also, several departments of the Nigerian Government may be dragged into the suit as well. This may turn to be the mother of all cases as Ugwuonye may download on all he learned about Nigerian Government since 2000 till date.

www.elombah.com

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