Hafsat Abiola et al. (Plaintiffs) v. Abdulsalami Abubakar (Defendant)

Court	United States District Court for the Northern District of Illinois, Eastern Division, United States
Case number	02 C 6093
Decision title	Memorandum Opinion and Order
Decision date	28 September 2007
Parties	Hafsat Abiola Chief Anthony Enahoro Dr. Arthur Nwankwo Femi Aborisade Owens Wiwa C.D. Doe Chief Gani Farewehinmi Abdulsalami Abubakar
Categories	Torture
Keywords	Murder; jurisdiction; illegal detention; (sovereign) immunity
Links	Memorandum Opinion and Order of the District Court
Other countries involved	Nigeria

Summary

Hafsat Abiola filed a complaint against General Abdulsalami Abubakar claiming that he is responsible for the death of her parents, Chief MKO Abiola and Kudirat Abiola. In particular, she claimed that as Chief of Defence Staff under Sani Abacha’s military rule (November 1993 – June 1998), and as President of Nigeria (November 1998 - May 1999), General Abubakar was responsible for torturing her father and keeping him in inhumane conditions, as well as for denying him access to a lawyer. In addition, she claimed that the regime is responsible for the death of her mother, who was threatened and killed following a campaign for the release of her husband.

In 2001, General Abubakar was served with summons when he visited the United States.

On 28 September 2007, the District Court for the Northern District of Illinois, Eastern Division, imposed a sanction on the defendant for his failure to appear for deposition. The sanction was an order declaring that the allegations of the plaintiffs had to be taken as established.

Procedural history

The plaintiff in this case was Hafsat Abiola, daughter of Chief MKO Abiola and Kudirat Abiola. Chief MKO Abiola was the winner of Nigeria’s 1993 presidential election. Hafsat Abiola brought a complaint under both the Alien Tort Claims Act (ATCA) and the Torture Victim Protection Act (TVPA) against General Abdulsalami Abubakar for the death of her parents. The complaint also involved Ken Saro-Wiwa’s son who claimed that the regime was responsible for the execution of his father.

The case was filed in February 2001 in the Eastern District of Michigan. In 2001, when General Abubakar visited the US, he was served with summons.

In April 2001, the plaintiffs requested a default judgment against General Abubakar. In June 2001, the motion was denied. Following an additional motion, on 1 March 2002, a default judgment against General Abubakar was entered pursuant to Rule 37(b)(2)(C) of the Federal Rules of Civil Procedure due to his failure to appear for deposition.

On 25 April 2002, the judgment was vacated on request of General Abubakar and the claims against him were dismissed on the basis of lack of personal jurisdiction.

On 17 June 2003, the District Court for the Northern District of Illinois held that General Abubakar enjoyed sovereign immunity for certain aspects of the claims but not for the claims in their entirety.

On 23 May 2005, the Court of Appeals for the Seventh Circuit dealt with the application of the Foreign Sovereign Immunities Act (FSIA) and the defence of sovereign immunity raised by the defendant. As regards the FSIA, the Court held that it does not provide protection to individuals, and therefore, Abubakar is not immune from suit. Abubakar’s defence of sovereign immunity for murder and acts of torture was also rejected by the Court. In addition, the Court emphasised that if a complaint is brought under the TVPA, the plaintiff is precluded from relying on the ATCA. Moreover, a claim under the TVPA also requires exhaustion of domestic remedies. In this respect, the case was referred to a Federal Court to decide on the issue of exhaustion of domestic remedies.

On 27 June 2006, the District Court for the Northern District of Illinois held that the plaintiffs have met the requirement of exhaustion of domestic remedies because of the absence of adequate and effective remedies in Nigeria.

On 5 March 2007, the Federal High Court of Nigeria held that General Abubakar would not be allowed to testify or give evidence in a US court.

On 19 March 2007, the District Court ruled that the plaintiffs had established a basis for imposition of sanctions, but it nevertheless gave the defendant one final opportunity to appear for his deposition before he would be held in default. General Abubakar did not appear.

Related developments

In 2008, the case was settled for $650,000.

On 30 January 2011, a Lagos High Court found Al-Mustapha, the former Chief Security Office to late General Sani Abacha, and Lateef Sofolahan, former personal assistant to Kudirat Abiola, guilty of murdering her. The Court sentenced them to death. When Al-Mustapha testified during trial, he accused General Abdulsalami Abubakar of keeping him in prison in order to prevent him from revealing the circumstances leading up to Kudirat Abiola’s death.

Legally relevant facts

Abdulsalami Abubakar was Chief of Defence Staff under Sani Abacha’s military rule from November 1993 until Abacha’s death in June 1998, and President of Nigeria between November 1998 and May 1999.

Core legal questions

Can the District Court sanction Abubakar for his non-compliance with an earlier order? (para. 15)

Specific legal rules and provisions

Federal Rules of Civil Procedure, 2007, United States:

Rule 37(d)
Rules 37(b)(2)(A)

Restatement (Third) of Foreign Relations, 1987, American Law Institute:

Section 442

Court's holding and analysis

In respect of the imposition of sanctions on a citizen and resident of another country, the District Court for the Northern District of Illinois, Eastern Division, held that the fact that General Abubakar could be subject to criminal sanctions in Nigeria, does not prevent the District Court ‘from compelling him to provide discovery or from sanctioning him if he fails to do so’ (para. 15).

The District Court held that ‘a multiple-factor balancing test’ should be applied. Relying on the factors in the Société Nationale case, the Court determined the following: the deposition of the defendant is important to the litigation, there were no viable ‘alternative means of securing the information’, the request for deposition was ‘reasonably specific’, Abubakar’s knowledge of the matters that led to the alleged wrongful detention and torture did not originate in the US (diminished relevance), the non-compliance undermines US policy, General Abubakar did not act in good faith, and the fact that General Abubakar is a defendant and a key witness (paras. 17-20).

As a result, the District Court imposed a sanction on the defendant for his failure to appear for deposition. The sanction was an order declaring that the allegations of the plaintiffs are to be taken as established (para. 20).

Further analysis

H. A. Olaniyan, ‘Nigeria and the Emerging Concept of Universal CivilJurisdiction’, British Journal of Arts and Social Sciences, 2012, Vol. 5(2), pp. 248- 272.

Instruments cited

Alien Tort Claims Act of 1789, United States

Federal Rules of Civil Procedure, 2007, United States

Torture Victim Protection Act of 1991, United States

Foreign Sovereign Immunities Act of 1976, United States

Additional materials

K. Matthew, ‘Abdulsalami has no immunity— US COURT’, AfriMAP, 22 February 2006.

‘US court finds Abubakar liable for Abiola's death’, Legalbrief Africa, 08 October 2007.

W. Mosadomi, ‘I’ll open up on Abiola’s death, says Abdulsalami’, Vanguard, 2 September 2011.

O. Adeniyi, ‘Kofi Annan: Abiola’s Death Was Suspicious’, This Day Live, 19 October 2012.

A. Okpi, ‘US, Abubakar knew what killed Abiola –Dr. Falomo’, Punch, 9 June 2013.

F. Fani-Kayode, ‘MKO Abiola, thes missing one hour and a deadly cup of tea’, Vanguard, 15 June 2013.

‘Abdulsalami Abubakar’, TRIAL.

Social media links

O. Agbaje, ‘MKO: FG moves to stop Abdulsalami from testifying in American court’, Online Nigeria, 13 March 2007.

‘Gen. Abubakar Killed MKO Abiola Says Al-Mustapha’, Nairaland Forum, 29 March 2012.