Alhaji Mohammed Abacha & Anor. v. A.G. Federation & Ors. (2023)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

HELEN MORONKEJI OGUNWUMIJU, JSC (Delivering the leading judgment)

This is an appeal against the decision of the Court of Appeal, Kaduna Division coram: Abdul Aboki, Dalhatu Adamu and Habeeb Adewale Olumuyiwa Abiru, JJCA, delivered on the 25th day of July, 2013. Therein, the court below upheld the decision of the Federal High Court, Kaduna Division and held that the appellants lacked locus standi to sue.

The facts that led to this appeal are as follows:

“Upon the receipt of the report of fraudulent corrupt practices against some companies in February 2008, a special investigation panel was set up by the Federal Government of Nigeria under the office of the National Security Adviser to investigate these companies.

In respect of the investigation, some witnesses were invited to appear before the panel. It is against this backdrop that the appellants as children of late General Sani Abacha, instituted an action against the defendants/respondents by an originating summons. The appellants sought answers to the following questions and wanted the following reliefs:

1. A declaration that the 4th defendant (a national of liechtenstein and judicial officer) is not permitted within the contemplation of the 1999 Constitution of the Federal Republic of Nigeria to conduct Liechtenstein criminal proceedings against the family of late General Sani Abacha at the office of the National Security Adviser (NSA) three arms zone Abuja in Nigeria.
2. A declaration that it is against the principle of international Law for the 4th defendant to come to Nigeria and act as a Judicial Officer to exercise Judicial functions in Nigeria in respect of Criminal Proceedings in Liechtenstein against the family of late General Sani Abacha.
3. A declaration that the consent granted by the 1st defendant to conduct Liechtenstein Criminal Proceeding at the office of the National Security Adviser (NSA) Three arms Zone Abuja or elsewhere in Nigeria for the purpose of forfeiture proceedings against the family of late General Sani Abacha in respect of alleged financial impropriety or misdeeds contrary to Liechtenstein criminal law is a breach of the 1999 Constitution of the Federal Republic of Nigeria, and therefore it is unconstitutional, illegal null and void.
4. An order setting aside the purported letters ofinvitation issued by the 2nd and 3rd defendants to Alhaji Bashir Dalhatu, Alhaji Abdul Azeez Arisekola, Alhaji Abubakar etc in respect of Criminal Proceedings against Abacha family to come and testify on the 12th day of March, 2008 at the office of the National Adviser (NSA) Three arms Zone Abuja as same is ultra vires the powers of the 2nd and 3rd defendant.
5. An order restraining the defendants, their agents, privies and/or servants from conducting criminal proceedings in respect of the forfeiture proceedings against the family of late General Sani Abacha at the office of the National Security Adviser (NSA) three arm Zone Abuja or anywhere as same is contrary to the provisions of the 1999 Constitution of the Federal Republic of Nigeria.
6. An order of perpetual injunction, restraining the defendants, their privies, servants and whomsoever from taking evidence from witnesses (i.e. Alhaji Bashir Dalhatu, Alhaji Abdul Azeez Arisekola, Alhaji Abubakar and any other witnesses) at the office of the National Security Adviser (NSA) three arms Zone Abuja or elsewhere within the Federal Republic of Nigeria.
7. An order perpetually restraining the 5th defendant, his agents, privies or servants from exercising judicial functions in the Federal Republic of Nigeria particularly in respect of criminal proceedings against the Abacha family.
8. An order perpetually restraining the 5th defendant, his agents, privies and/or servants from exercising judicial functions in the Federal Republic of Nigeria, particularly in respect of criminal proceedings against the Abacha family.”

The respondents, on the other hand, filed a notice of preliminary objection challenging the jurisdiction of the Federal High Court to entertain the suit. The court delivered its judgment declining jurisdiction to entertain the suit and consequently struck out the suit for lack of locus standi by the appellants.

Dissatisfied by the decision of the trial court, the appellants appealed to the court below which unanimously dismissed the appeal on the 25th day of July, 2013 for lacking in merit.

The appellants have further appealed to this court relying on the following issues for determination:

1. Whether the lower court was right when it affirmed the decision of the trial court that the appellants lacked the locus standi to institute the action on the ground that the appellants’ affidavit evidence had not disclosed sufficient interest in the suit to maintain same.
2. Whether the lower court was right when it held that the affidavit evidence of the appellants was properly evaluated, having regard to the circumstances of this case.

The respondents denoted similar but wordier issues for determination to wit:

1. Whether a foreign tribunal or court is competent to sit as a court exercising judicial functions within the Federal Republic of Nigeria.
2. Whether the princely court of justice Vaduz, Liechtenstein sit in the office of the National Security Adviser (NSA) in Nigeria as a court of competent jurisdiction and take evidence from witnesses in respect of the forfeiture proceedings in Liechtenstein against the family of late Gen. Sani Abacha.
3. Whether having regards to Section 6 of the 1999 Constitution of the Federal Republic of Nigeria, the judicial powers vested in courts in Nigeria extend to Judicial Officers outside the Territorial waters of Nigeria and in this case, the judicial officers from the Government of Liechtenstein.
4. Whether having regards to section 36 of the 1999 Constitution of the Federal Republic of Nigeria, the proposed proceedings to be conducted in the office of the National Security Adviser (NSA) in the presence of a police officer without the participation of the plaintiffs is not contrary to the principle of fair hearing as guaranteed by the 1999 Constitution of the Federal Republic of Nigeria.
5. Whether the 2nd and 3rd respondents have powers under the 1999 Constitution of the Federal Republic of Nigeria or any other law to issue witness summon to witnesses to come to Court and testify against the family of late General Sani Abacha or against any citizen of the Federal Republic of Nigeria.”

I will adopt the more concise issues as donated by the appellants in the determination of this appeal.

Issue one:

It is the submission of learned counsel for the appellants, Dr. R.O. Atabo Esq., that the lower court erred in law when it held that the appellants lacked the locus standi to institute the action and their suit was consequently incompetent. Counsel cited Ojukwu v. Governor of Lagos State (1985) 2 NWLR (Pt. 10) 806, A-G., Lagos State v. Eko Hotels Ltd. (2007) 9 WRN 1; (2006) 18 NWLR (Pt. 1011) 378. Therein the law on locus standi was settled to mean the legal capacity or standing of a party to institute or commence an action in a competent court of law. For a person to be held to have locus standi in a suit, such a person must show that he has sufficient or legal interest which is to be adversely affected by the act of the respondent and upon which he is calling on the court to intervene. Counsel cited Albion Construction Ltd. v. Rao Investment & Properties Ltd. (1992) 1 NWLR (Pt. 219) 583.

Counsel further submitted that to determine whether the appellants have locus standi, the court is to refer to their statement of claim or originating summons. Counsel cited Quo Vadis Hotels Restaurant Ltd. v. Commissioner of Lands (Mid-West) (1973) 6 S.C 71.

Learned appellants’ counsel argued that the legal interest of the appellants is disclosed from the issues submitted for determination before the trial court as well as the reliefs sought arising from the issues for determination.