Attorney General Of The Federation V. Alhaji Ali Abacha (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOHN INYANG OKORO, J.C.A (Delivering the Leading Judgment)

This is an appeal against the judgment of the Federal High court sitting in Kaduna and presided over by A. M Liman, J which judgment was delivered on the 24th day of September, 2004 wherein the learned trial judge granted some of the reliefs sought by the plaintiff (now Respondent) and refused the others. The Respondent herein commenced the action giving birth to this appeal via an originating summons dated 2nd April, 2004 and filed on 5th April, 2004 itemizing eight (8) questions for determination.

A brief facts of this case are that on or about the 27th day of September, 1999, the then Attorney General of the Federation and Minister of Justice, Kanu Agabi, SAN gave authority to one Mr. Erinco Monfrini, a partner in the firm of Hauchmann Monfrini & Bottage in Geneva, Switzerland to “assist and represent the Federal Republic of Nigeria for the purpose of International mutual assistance, proceedings to be initiated in Switzerland and elsewhere in the world in relation to the recovery of looted monies by the late Head of State, General Sani Abacha and his family members and other public Servants and other third parties, who have used their position or participated as accomplices to misappropriate public funds. To commence proceedings, elect domicile in any jurisdiction and to all that may be necessary for the institution of any proceedings until final judgment”.

Furthermore, in December, 1999, the President, Federal Republic of Nigeria, purporting to act in exercise of his powers under the Banking (freezing Accounts) Act of 31st December 1983, authorized the then Attorney General of the Federation and Minister of Justice, Kanu Agabi, SAN, to “request the Swiss Authorities to freeze all Bank accounts held in its jurisdiction by late General Sani Abacha, his children, his servants and agents and any other individuals or companies for the purpose of keeping the proceeds of funds misappropriated or stolen from the government and people of Nigeria between 1983 – 1998 and to seize and detain all banking and other documents relating to the said accounts, charge and prosecute all holders of such accounts, to recover and pay over to the Federal Government of Nigeria all monies falsely and fraudulently taken from the government and people of Nigeria”.

Consequent upon the delegation of authority to the Attorney General of the Federation to order freezing of Bank accounts of the late General Sani Abacha and his children and the donation of power of Attorney to Mr. Enrico Monfrini and the subsequent letters of request for mutual assistance originated by the Appellant to various countries, the accounts of the Respondent in Switzerland, United Kingdom, Jersey and Luxemburg were frozen.

In addition, in October 2003, the Appellant through Mr. Enrico Monfrini requested the Government of Switzerland to transfer all blocked funds standing to the credit of the Respondent in Banks in the Country to the Federal Republic of Nigeria. The Appellant in requesting for the freezing of the bank accounts of late General Sani Abacha and his children relied on the Banking (freezing of Accounts) Act, of 31st December, 1983.

As earlier stated, aggrieved by the action of the Appellant, the Respondent commenced an action against the Appellant via originating summons setting out eight questions for determination as follows:-

“(1).Whether the Defendant under the laws in force in the Federal Republic of Nigeria had power as at the 27th day of September 1999 to delegate to maitre Enrico Monfrini & Bottage Associate – Switzerland to freeze the account of any person particularly the plaintiff.

(2). Whether the Defendant under the laws in force in the Federal Republic of Nigeria as at 23rd December, 1999 had the power to seek to freeze the accounts of any person particularly the plaintiff without a sanction of a court of law?.

(3). Whether the Defendant can seek for mutual assistance from any person, Government or Authority (particularly the Government of United Kingdom, Switzerland, Liechtenstein, Luxemburg and Jersey) or any foreign countries of the world on the basis of the delegation of powers purportedly made to it by the President and commander in Chief of the Armed Forces of the Federal Republic of Nigeria on 23rd December, 1999.

(4). Whether the Defendant can claim right of access to the Plaintiffs foreign account and/or seek the assistance of any foreign country of authority to have access to the Plaintiff’s foreign accounts without the Plaintiff having been convicted of a criminal offence in Nigeria.

(5). Whether the Defendant purporting to act under the Banking (freezing of Account) Act of 31st December, 1983 (retained as cap 29 laws of the Federation 1990) can validly seek to freeze the accounts of the Plaintiff either in Nigeria or elsewhere in the world without granting the Plaintiff a hearing as contemplated under section 36 of the 1999 constitution of Nigeria in such determination of the plaintiff’s rights?

(6). Whether the defendant acting upon a non existent law can validly seek to freeze or seek the collaboration of foreign Government (particularly United Kingdom, Switzerland, Liechtenstein, Luxemburg and Jersey) to freeze the Accounts of the Plaintiff.

(7). Whether the defendant purporting to act on the powers of the President and Commander-in-Chief of the Armed Forces of the Federal Republic of Nigeria under the Banking (freezing of Accounts) Act cap 29 laws of the Federation 1990 can validly request a transfer of funds from the Plaintiff accounts maintained in the United Kingdom, Switzerland, Jersey, Liechtenstein, and Luxembourg sometime in October, 2003, when the Plaintiff had not been convicted of any General offence under the laws in force in the Federal Republic of Nigeria?