A court clerk cannot issue default judgment_FG

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Minister of Justice Abubakar Malami

The Attorney General of the Federation and Minister of Justice, Mr. Abubakar Malami, SAN has frowned at the false media reports that a United States court has granted a default judgement against Nigeria, insisting that a judgment issued by a court clerk cannot be taken seriously.

In a statement made available in Abuja on Tuesday by Comrade Salihu Othman Isah, Special Adviser to the Attorney General of the Federation and Minister of Justice revealed that Malami who address the media through the Solicitor-General of the Federation and Permanent Secretary, Dayo Apata, stated categorically that no default judgement was entered against Nigeria in the enforcement proceedings by Process & Industrial Development Ltd.

He stressed that what is being taunted as default judgement was actually a default entry made by the court clerk, pointing out that, under the Foreign Sovereign Immunities Act (FSIA), a defendant has up to 60 days period to answer to a petition filed against it. Where no response is entered for the Defendant, the 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 further explained that based on the presumption of sovereign immunity, 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 US Court under FSIA or whether the case before it falls within one of the recognized exceptions.

Even where the court determines that it has jurisdiction, a default judgment 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.

Malami noted that the relieve on the matter is based principally on the provision of Section 1608 (e) of the FSIA which states that no judgement by default 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.

Nevertheless, AGF revealed that on June 12th 2018, the Federal Government through its foreign solicitors, Messrs. Curtis, Mallet-Provost, Colt & Mosle LLP, had filed the necessary application to set aside the clerk’s default entry and to dismiss the entire case on grounds of a defective services and lack of personal jurisdiction over Nigeria in line with the provisions of the FSIA.

He therefore urged Nigeria’s foreign friends, diplomatic community and potential investors to ignore the malicious report

The full text, “The attention of the Federal Ministry of Justice has been drawn to false media reports being peddled in the media space to the effect that a United States District Court has entered a default judgement affirming a $6.59 billion arbitral award in favour of P&ID against the Federal Government in a foreign enforcement proceeding on the alleged ground that the Federal Government failed to enter a defence in the matter. In further confirmation 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 Ministry wishes to state categorically that no default judgment was entered against Nigeria in the enforcement proceedings by P & ID. 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.

 

“It needs be stated that what is being taunted as a default judgment was actually a default entry made by the Court Clerk. Under the Foreign Sovereign Immunities Act (FSIA), a Defendant has up to 60 days period to answer to a petition filed against it. Where no response is entered for the Defendant, 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 judgment 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 judgment.

 

“Based on the presumption of sovereign immunity, 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. Even where the court determines that it has jurisdiction, a default judgment 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 thus: “No judgment by default 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…” 

 

“On 12th June, 2018 our 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.

 

“We wish to re-assure the general public that there is no default judgment against Nigeria at the instance of P&ID. We urge Nigeria’s foreign friends and investors to ignore the malicious reports. 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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