Alhaji Mohammed Abacha & Anor V. Attorney General Of The Federation & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ABDU ABOKI, J.C.A. (Delivering the Leading Judgment)

This appeal is against the decision of the Federal High Court sitting at Kaduna, delivered on the 26th day of June, 2009.

The facts of the matter briefly is that some times in February 2008 upon the receipt of a report of fraudulent corrupt practices against some companies 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. Invitation letters were dispatched to certain individual to appear before the panel to brief it on all that they know about these companies.

It is against this background that the Appellants as Plaintiffs caused to be issued at the lower court an originating summons dated 3rd March, 2008 against the Respondents jointly and severally, seeking five questions for determination and eight orders of declaratory reliefs as follows:

“1. Having regard to Section 6 of the 1999 Constitution of the Federal Republic of Nigeria and the judgment of Hon. Justice Jinadu of the Federal High Court Lagos, between ALHAJI MOHAMMED SANI ABACHA VS. ATTORNEY GENERAL OF THE FEDERATION & 3 ORS in Suit No. FHC/L/CS/498/2000 whether a foreign Tribunal or Court is competent to sit as a court exercising judicial functions within the Federal Republic of Nigeria.

2. Whether having regard to the judgment of Hon. Justice Jinadu of the Federal High Court of Lagos in Suit No. FHC/L/CS/498/2000 between ALHAJI MOHAMMED SANI ABACHA VS. HON. ATTORNEY GENERAL OF THE FEDERAL REPUBLIC OF NIGERIA & 3 ORS, Preicely Court of Justice Caduz, Liechtenstein can 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 General Sani Abacha.
3. Whether having regard 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, to include 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) Three Arms Zone Abuja 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 Defendants 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.Geographic Reference

WHEREOF the plaintiffs claim against the Defendants jointly and severally as follows:

1. A DECLARATION that the 4th Defendant (a National of Liechtenstein and a 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 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. A DECLARATION that the issuance of witness summons and letters to Alhaji Bashir Dalhatu, Alhaji Arisekola, Alhaji Abubakar Alhaji etc to come and testify at the office of the National Security Adviser (NSA) Three Arms Zone Abuja in respect of the Criminal Proceedings at Pricely Court against Abacha family is ultra vires the powers of the 2nd and 3rd defendants.
5. AN ORDER setting aside the purported letters of invitation issued by the 2nd and 3rd Defendants to Alhaji Bashir Dalhatu, Alhaji Abdul Azeez Arisekola, Alhaji Abubakar Alhaji etc in respect of Criminal Proceedings against Abacha family to come and testify on the 12 day of March, 2008 at the office of the National Security Adviser (NSA) Three Arms Zone Abuja as same is ultra vires the powers of the 2nd and 3rd defendants.
6. 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 Arms Zone Abuja or anywhere as same is contrary to the provisions of the 1999 Constitution of the Federal Republic of Nigeria.
7. AN ORDER of perpetual injunction, restraining the Defendants, their agents, privies, servants and whomsoever from taking evidence from witnesses (i.e. Alhaji Bashir Mohammed Dalhatu, Alhaji Arisekola, Alhaji Abubakar and any other witnesses) at the office of the National Security Adviser (NSA) Three Arms Zone Abuja or anywhere within the Federal Republic of Nigeria.
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 Abacha family”.Geographic Reference

The Plaintiffs/Appellants also filed along with the originating summons a motion ex-parte supported by an affidavit of urgency and an exhibit marked as exhibit ‘A’. The motion ex-parte prayed the Court for the following reliefs:

“1. AN ORDER granting leave to the Plaintiff/Applicant to serve the Originating Summons and all processes in this suit by substituted service on the 5th Defendant by delivery of all the processes in this suit to the office of the Attorney General of the Federation of Nigeria, Federal Ministry of Justice, Shehu Shagari Way Abuja and such service shall be deemed to be good service.

2. AN ORDER limiting the period of entering of appearance to three (3) days for the Defendants to enter memorandum of Appearances in this Originating Summons.
3. AN ORDER OF INTERIM INJUNCTION restraining the Defendants, their agents, privies and or servants from conducting criminal proceedings or taking steps to proceed against Abacha family in respect of criminal proceedings in Liechtenstein at the office of the National Security Adviser or any where in Nigeria between the 12th day of March, 2008 to 18th day of March, 2008 or any other day pending the hearing and determination of the motion on notice.
4. AND for such further order or other orders as the Honourable Court may deem fit to make in the present circumstance”.

The Defendants/Respondents on the 10th June, 2008 filed a notice of preliminary objection dated 9th June, 2008 challenging the jurisdiction of the lower court to entertain the matter on the ground that the plaintiffs/Appellants have no locus standi to institute the action.

The lower court delivered its judgment which included ruling on the preliminary objection on the 26th June, 2009 declining jurisdiction to entertain the matter and accordingly struck out the suit.

Dissatisfied with this decision of the lower court the Plaintiffs/Appellants filed their notice of Appeal containing three grounds of appeal on the 5th August, 2009. In accordance with the rules of this court parties filed their respective briefs of argument.

The Appellants, brief of argument dated 9th November, 2010 and filed 10th November, 2010 prepared by P. O. Atabo Esq. was deemed filed on 9th March, 2012.

Learned counsel to the Appellant at the hearing of this appeal adopted the said brief of argument as the Appellant’s arguments and submissions in this appeal. He urged the court to allow the Appeal.

The Respondents’ brief of argument dated 13th March, 2012 and filed the same date was prepared by B. A. Saidu Esq. Learned counsel for the Respondents adopted their brief of argument as the Respondents’ argument and submission in this appeal and urged the court to dismiss the appeal and affirm the judgment of the lower Court.