THE GRANT OF DISCOVERY REQUEST TO AKWA IBOM STATE:

THE LEGITIMACY OF THE GRANT OF DISCOVERY REQUEST TO ATTORNEY

GENERAL OF IBOM STATE -BARRISTER ASAM
ASAM (SAN :

This analysis is provided in response to request by some Forumites:

Please be advised that the analysis is for educational purposes only. It is not intended to be used nor construed as legal advice. Also, the analysis is based on the information gathered in this forum which may or may not be totally accurate.

FACTS:
“Two United States-based Akwa Ibom State indigenes are” allegedly “directed to produce documents and submit to sworn testimonies in connection with investigations into criminal violence in Akwa Ibom State, Nigeria.

Robert R. Amsterdam on behalf of Akwa Ibom State allegedly stated that “they have information that these Akwa Ibomites have participated actively from the United States in planning and coordinating violent criminal activities in Akwa Ibom State, including the events of March 22, 2011, which led to the death of at least 12 people and extensive property damage in Akwa Ibom State, Nigeria,”

They are seeking to discover some information and documents relevant to these allegations.

ANALYSIS:

In this Judicial Circuit where the discovery request was allegedly made, separate discovery statutes and local rules addresses the trial Judge's conduct of discoveries during the initiation or progress of cases. The laws purpose is to ferret out the truth, the relevant facts and sharpen issues in cases.

VARIOUS DISCOVERY DEVICES:
DEPOSITION:
Deposition is one of several means provided under federal and state discovery laws for taking of testimony under oath. The deposition is conducted in question and answer form. Although a deposition is in part judicial proceeding, it is usually taken in a relatively informal setting, usually in the offices of an attorney. The person being deposed is sworn by a court reporter whose duty is to record and later transcribe all that is said in the deposition.

INTERROGATORIES:
Interrogatory is also one of several means provided by law for obtaining information about a case. It is a set of questions intended to disclose the evidence, identify the issues, uncover the facts and preserve the facts for trial if the case goes to trial.

REQUEST FOR ADMISSIONS:

Request for Admission is also one of discovery tools. It requests the answering party to admit the truth of the matter asserted by the asking party. Failure to deny the request within the time allowed by law can render the matter deemed admitted by operation of law. Either party in a case can avail himself of admission made in the pleadings of another.

REQUEST FOR PRODUCTION OF DOCUMENTS:

Requires the production of documents relevant to the issues in the case or that may lead to the discovery of admissible evidence.

Limited discoveries are allowed in criminal cases such as the one at issue in this case.

DUTY TO RESPOND TO DISCOVERIES:

A party properly served with discoveries has absolute duty to respond.

PROTECTION FROM HARRASSMENTS:

Federal Rule allows for judicial intervention to prevent against use of discovery for annoyance, embarrassment, oppression or undue burden or expenses.

THE CASE IN POINT:

Federal Rule 28 U.S.C. Section 1782 (a) applies to the discovery in this criminal case. The text reads in pertinent part as follows:

“The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation. The order may be made pursuant to a letter rogatory issued, or request made by a foreign or international tribunal or upon the application of any interested person”

The Eleventh Circuit Court of Appeals recognizes the wide range of discretionary authorities of trial courts in discovery matters.

Applying the four part test set forth by the Eleventh Circuit Court of Appeals in interpreting section 1782 (a), the Request must:

(1) Be made 'by a foreign or international tribunal,' or by 'any interested person';

(2) the request must seek evidence, whether it be the 'testimony or statement' of a person or the production of 'a document or other thing';

(3) the evidence must be 'for use in a proceeding in a foreign or international tribunal'; and

(4) the person from whom discovery is sought must reside or be found in the district of the district court ruling on the application for assistance.”

WHY THE DISTRICT COURT'S RULING IS CORRECT:
The applicable discovery statute in this case allows the “district court in which a person is found to order such person to give his testimony or statement or to produce a document or things for use in a foreign international tribunal including criminal investigation conducted before formal accusation.”

The language of the statute is clear and unambiguous and confers authority on the district court based on the facts presented before it by a foreign government and in our case –Akwa Ibom State to order the discovery to enable the Attorney General to discover facts that might sustain formal accusation against these “persons of interest.” Therefore, the court acted within its statutory authority and permissible discretion in granting the discovery request.

Also, the Attorney General acted within his constitutional authority in seeking the discovery set forth above pursuant to Section 211 of the Constitution of the Federal Republic of Nigeria 1999, as amended, which provides in pertinent part as follows:

“211.-(1) The Attorney –General of a State shall have power-

(a) To institute and undertake criminal proceedings against any person before any court of law in Nigeria other than a court-martial in respect of any offence created by or under any law of the House of Assembly;

(b) To take over and continue any such criminal proceedings that may have been instituted by any other authority or person; and

(c) To discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.

(2) The powers conferred upon the Attorney-General of a state under subsection (1) of this section may be exercised by him in person or through officers of his department.

(3) In exercising his powers under this section, the Attorney –General of a State shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process.

Under implied power doctrine, the power to “institute and undertake criminal proceedings against any person” implies the power to investigate such alleged criminal activities. Accordingly, the Attorney General in my view is not guilty of usurpation of the authority of the Nigeria Police Force in violation of Section 4 of the Police Act Cap 19, Laws of the Federation of Nigeria as argued by Barrister Andem.

Oduok writes from Alanta Georgia