THE Attorney-General of the Federation (AGF) and Minister of Justice, Abubakar Malami (SAN) on Tuesday, described as false media reports that a US District Court has entered a default judgement affirming a $6.59 billion arbitral award in favour of P&ID against the Federal Government on the alleged ground that the Federal Government failed to enter a defence in the matter.
To confirm that the media reports were orchestrated and fabricated, none of the media platforms sought for the reaction of the Ministry before publication against all known tenets and ethics of journalism, the AGF stated in a statement signed by the Solicitor General of the Federation (SGF) and the permanent secretary, Federal Ministry of Justice, Dayo Apata.
The AGF categorically stated that no default judgement was entered against Nigeria in the enforcement proceedings by P & ID as the Federal Government through its foreign solicitors, Messrs. Curtis, Mallet-Prevost, Colt & Mosle LLP, has commenced the process of challenging and defending the enforcement proceedings.
He said, what is being taunted as a default judgement was actually a default entry made by the US District Court Clerk, adding that, under the Foreign Sovereign Immunities Act (FSIA), a Defendant has up to 60 days period to answer to a petition filed against it.
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Where no response is entered for the Defendant, he said the Court Clerk, upon application by the petitioner, makes a default entry, which in this case was made on 5th June 2018.
“It is to be noted that under the FSIA, a default judgement cannot be entered against a foreign State like Nigeria unless the presiding judge determines so after the petitioner/claimant must have established its entitlement to a default judgement,” he said.
Based on the presumption of sovereign immunity, the AGF said the US District Court is still under obligation, despite default by a Foreign State, to determine whether the Foreign State is immune from the jurisdiction of the US Court under FSIA or whether the case before it falls within one of the recognised exceptions.
According to the Chief Law Officer, “Even where the court determines that it has jurisdiction, a default judgement will not be granted automatically or as a routine matter to be handled by a court clerk as this can only be done after a formal trial.”
“We place reliance on the provision of Section 1608(e) of the FSIA which states that: No judgement by default (default judgement) shall be entered by a court of the United States or of a State against a foreign state, a political subdivision thereof, or an agency or instrumentality of a foreign state, unless the claimant establishes his claim or right to relief by evidence satisfactory to the court.”
He said, on 12th June 2018 Nigeria’s foreign solicitors filed the necessary application to set aside the clerk’s default entry and to dismiss the entire case on grounds of defective service and lack of personal jurisdiction over Nigeria in line with the provisions of the FSIA.
The AGF assured that there is no default judgement against Nigeria at the instance of P&ID and urged Nigeria’s foreign friends and investors to ignore the malicious reports as the Federal Government is also making concerted efforts through legal and diplomatic channels to resolve the issues in contention between the parties in this matter.
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