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Case number 17-74, Jackson M. Nanaka Appellate versus Federal Republic of Nigeria at F. Mr. Mahdi for the appellate, Mr. Manning for the appellate.

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Good morning, Your Honor, Bennett Amadi for the appellant.

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Your Honor, this is an appeal from the district court dismissing the complaint filed by the appellant in this case and the facts of the case arose from his commercial relationship, purely commercial relationship between the appellant and the Federal Republic of Nigeria.

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You know, in 2004, the appellant was given the contract by Nigeria to... Is it really a contract?

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Commercial relationship... It's lacking an essential term, and I think it's fairly basic contract law that an agreement to make an agreement is not enforceable.

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And this contract ends by saying for a

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the gist of it ends by saying that you would agree on the terms of percentage of payment later on, which was never done.

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So it's not really a final contract, is it?

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No, you know, the contract was not fully integrated.

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It was not a fully integrated contract.

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It was to recover and discover.

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And I've found a number of cases that say that the kind of agreement to make an agreement is not enforceable.

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I've found none to the contrary.

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Do you know of any to the contrary?

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You know, they agreed.

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The agreement was reached.

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There was a contract.

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What was supposed to be his return if he collected something?

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What was his fee supposed to be under that contract?

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What obtains within this jurisdiction, you know... It's got an opportunity to be agreed later, didn't it?

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Forty percent of what ever is discovered

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or recovery is not a fully integrated contract, Your Honor.

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What percent of what was recovered?

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Forty percent.

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That's in the contract?

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It's not specifically stated in the contract.

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It's not in the contract.

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Yes, Your Honor, and even if the court holds that the percentage was not stated, then the appliance can recover on quantum merit basis.

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So even if – let me just follow up on Judge Santel.

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Even if it is a contract, you're claiming breach of contract, right?

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But there's nothing in the letter at all authorizing him to represent Nigeria in court in the forfeiture proceedings.

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How could this – even if it was a contract, how could it possibly provide a basis for a breach of contract claim?

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discover and recover.

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And coming to cultural institutions of action is part of the recovery.

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It's part of the recovery, you know.

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And that the appellant did.

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When the discovery was made and the forfeiture action was commenced, he intervened.

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He hired lawyers to assist in the work.

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If whatever the percentage was, in the end, there was no recovery.

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So 40% of zero is the same as 20% of zero or 100% of zero.

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What fee could he possibly be due under this contract when there was no recovery?

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You know, there was discovery, expenses were incurred, and the fees that can

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can be paid, can be on a quantum basis.

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You know, essentially they got something.

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They were discovered.

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At least they know exactly where those monies are.

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They cannot spend any further expenses trying to find out where the monies are.

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That is the benefit conferred on them.

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of your quantum merit and unjust enrichment claims.

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You say that the district court, and I'm quoting this from your brief, failed to accept as true the facts alleged in the complaint.

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What facts did it fail to accept as true?

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You know, the district court here was doubting whether

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that was in the contract was doubting whether my client, the appellant discovered.

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I'm talking about the unjust enrichment claim and the unjust enrichment and quantum merit claims.

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That's where you say it.

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I looked at the district court decision.

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I didn't see any fact finding.

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I thought the way I read the district court, the district court seemed to be accepting

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your allegations, but ruling against you on the law.

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And so I'm curious as to what I might have missed there.

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What facts did he not assume were true?

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What facts, what alleged facts in your complaint did he not accept as true?

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You know, the district court did not accept the fact that my client did not accept that my client discovered

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the stolen and looted funds in issue in this case.

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And that fact was clear.

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And again, the district court did not assert or doubted that there was a contract.

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Well, whether there's a contract or not is a legal conclusion.

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That's a question of law.

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He accepted your allegations about the facts.

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He just didn't agree with you about the law.

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He doesn't have to accept your allegations that there's a contract.

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That's not a fact in a contract case.

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A fact is that there's a document that's signed.

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But the question of whether the signed document is a contract is a legal question.

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Yes, you know, that was why I indicated that it was not a fully integrated contract.

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It stated there in the document that he should discover the funds and then recover the funds

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from time to time be informing them of the efforts that he was making.

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Does your breach of contract claim depend on anything besides the letter that the attorney, the Nigerian Attorney General wrote to the Justice Department and on the referral for criminal investigation?

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The document that we produce and then the reaffirmation letter by the same attorney general that gave that work to the appellant.

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Those are the documents in support of the contract.

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Why aren't those acts of state?

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Sir?

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Why aren't, why isn't that claim

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barred by the act of state doctrine because you seek to question official acts of a foreign government official in his own country.

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You know, that was purely commercial relationship.

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The relationship was, but the communication from the Nigerian Attorney General to the Justice Department

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is an official communication, which we've said is protected by the Act of State Doctrine.

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With your respect, Your Honor, the exception, the commercial activity exception under 28 U.S.C.

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1605, the commercial exception takes care of that.

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It says, if it is a purely commercial relationship, the act of state doctrine doesn't come in.

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And when you almost take a look at the relationship, it was purely commercial.

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And if the case is allowed to go back to the district court, the district court can

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decide the relationship without going into the legality or illegality of the communication in Nigeria or that with the attorney general and the attorneys representing the US in the case.

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Okay, thank you.

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Your time is up.

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May it please the honorable court.

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My name is Sado Manu, and I represent Apulese Federal Republic of Nigeria and Abubakar Malani, Nigeria's current attorney general.

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This court should affirm the decision of the district court because it correctly applied the act of state doctrine and also because it correctly found that the appellant failed to state a claim as to its claims for – as to his claims for unjust enrichment and quantum merit.

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I first discussed the application of the act of state doctrine.

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To understand the basis for the district court's application of the act of state doctrine in this case, we must first look at the district court's basis for setting jurisdiction over this case.

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The district court correctly found that it had jurisdiction pursuant to the commercial activity exception of the Foreign Sovereign Immunities Act, FSIA.

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Now examine that

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decision examined more closely shows that the basis, the precise basis for the district court's finding of the jurisdictional NICSAs was the third clause or ambit of FSIA section 1605A2, which is that this action was based on an act

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performed outside the United States that was taken in connection with the commercial activity of a foreign state outside of the United States, and that caused a direct effect within the United States.

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So per the district court's analysis, the commercial activity in question here was the 2004 instruction letter.

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But the act in connection with that commercial activity is a 2014 letter from the former Nigerian Attorney General, Mr. Aduke, to the U.S.

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Department of Justice.

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And the direct effect of that act, of course, was the United States – the U.S.

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Department of Justice's filing of the 2014 letter in the civil asset forfeiture case and leading to the striking of all of the upland states.

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And you're going to explain to us why that letter is act of state?

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It is act of state because it is a communication – It's just a communication within the

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It's just – it's advising the justice – it's not even sent to the attorney general.

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It's just a letter to the Justice Department advising them that the appellant's not authorized to participate in the case.

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It's just a routine communication about a piece of litigation.

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Why is it active state?

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One, it is an intergovernmental communication, and if you look at the context of that intergovernmental communication, it is part of not just any lawsuit, it is a civil asset forfeiture case being conducted by the U.S.

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Department of Justice.

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Only the U.S.

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Department of Justice has the power to bring those civil asset forfeiture cases under CAFRA.

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mutual legal assistance treaties between Nigeria and the United States.

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The U.S.

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Department of Justice reached out to Nigeria and asked, we've got these attorneys inserting themselves into our civil asset forfeiture case.

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Who are they?

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Do they have authority to represent you?

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Then the Nigerian attorney general sends a response, a letter saying, no.

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They don't – do not have authority.

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They should not be inserting themselves into the case.

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And on the basis of that communication, the U.S.

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DOJ then filed a letter with the court and resulted in striking out of – striking out all the appellants' claims and pleadings.

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So I think that this case is –

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really on all fours with this circuit's decision in Sisypio – this is the Islamic Republic of Iran – where the circuit in that case held that intergovernmental communications, when two governments are dealing with – negotiating with each other, it does not matter what the substance of your communications are, what matters is the negotiations, the direct leads between the two governmental entities.

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And that is what is at stake here.

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The communication in and of itself bears some tangential relationship to the commercial activity.

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The underlying commercial activity here is the 2004 letter.

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That is true.

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But the 2004 letter is not the basis, the gravel man, of this action.

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The gravel man of this action is the 2014 letter.

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This is a borrowing that has the appellant's authority to represent Nigeria in the civil asset foreclosure case.

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And indeed, if one reads through the Joint Appendix, the complaint is there at 113.

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Reference is made to – thank you, pardon me – 113.

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The complaint starts at J5.

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Reference is made to the 2014 letter in virtually each and every paragraph of the complaint.

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So of note is that the district court did not hinge its assertion of jurisdiction on either the first ambit of 1605A2 or the second ambit.

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Interestingly enough,

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The appellant does not challenge the portion of this district court's ruling, asserting jurisdiction on the basis of the third ambit of 1605A2.

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Now if he had done that, if the appellant had raised that issue in his notice of appeal, we might be discussing a different appeal here, but he does not do that.

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He actually accepts that basis for, he glosses over the nuances of 1605A2.

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And having not raised that matter in his notice of appeal,

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he cannot now challenge that ruling because the issue is not properly before the court.

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Now, assuming for the sake of argument that this was a case where the appellant merely alleged that he had a retainer agreement, he performed, and the Federal Republic of Nigeria was refusing to pay, there would be different dealing with an entirely different case here.

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The first ambit of 1605A2 would apply, clearly, and there would even be no talk of an act of state doctrine.

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The relationship and the action will be based on a purely commercial activity, but that is not the case here.

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The grabberman of the appellant's complaint is the 2014 intergovernmental communication between the Attorney General of Nigeria and the United States Department of Justice's asset forfeiture and money laundering unit.

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Now as to Upland's intentional infliction of emotional distress claim, the Upland alleged in his complaint that the Nigerian Attorney General harassed him by referring him to the Nigerian law enforcement agency, the Economic and Financial Crimes Commission.

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And clearly, a referrer to a law enforcement agency for investigation and possible prosecution is a very clear example of an act of state government function which cannot be conducted by private actors.

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And I would note again that

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The 2014 letter was written by the Nigerian attorney general in Abuja, Nigeria.

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It's written on the attorney general's letterhead.

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It was not written in the United States, contrary to what the appellate now argues.

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And it was also not filed by the attorney general.

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The letter was transmitted to the U.S.

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Department of Justice, and the U.S.

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Department of Justice then filed it in the civil asset forfeiture case.

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Now, moving on to the

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Failure to state a clean prong of the lower court's decision.

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APLAN's claims for unjust enrichment and quantum merit were properly dismissed for failure to state clean.

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Now, even if the complaint is read in the manner most sympathetic to the plaintiff, the complaint does not and cannot plausibly allege that the APLAN conferred any benefit on Nigeria.

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And as the court has correctly pointed out in the course of Apland's arguments, the lower court did accept all of the Apland's allegations in this complaint as true and construed them in the manner most favorable to the Apland.

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But under each construction, it could not reach – it could not agree that some tangible benefit had been conferred upon Nigeria.

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It is true that under Rule 12b6 motion, the court must presume the truth of the complainants – the complainant's factual allegations and accept him as true, but there's an important target, and that target, as laid down in Ashcroft and Iqbal, is that the court

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must ask whether the facts alleged suffice to state a claim that is plausible.

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The claims that Apland states in his complaint are not plausible.

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The 2004 instruction letter is very clear.

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It says no recovery, no payment.

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Apland now argues that this was not an integrated contract, but he did not make that allegation in his complaint.

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He also argues that

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He – the discovery was part of his instructions, but the letter is clear that he had represented the Nigerian Government, he had discovered the assets already, so they tasked him with recovering same.

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And nowhere in his complaint does he allege that he recovered any funds for the Nigerian Government.

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I therefore urge this honorable court to affirm the decision of the law.

[00:20:59] Speaker 00:
MR.

[00:21:02] Speaker 00:
Okay, you can take one minute, Mr. Lippert, if you would like.

[00:21:06] Speaker 04:
Thank you, ma'am.

[00:21:10] Speaker 04:
You know, as I will respectfully point out that the case of Kirkpatrick against Environmental Technos Corp is very relevant in this case.

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And the act of state doctrine

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here doesn't apply at all because the relationship was purely commercial.

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Purely commercial.

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And then the case of Herdary confirms that.

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And that of Kate Patrick confirms it too.

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And on the issue of no recovery, no payment.

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Now Nigeria acted in bad faith and blocked the appellant from

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making the full recovery when the appellant was ready, willing, and able to complete the job.