Federal Republic Of Nigeria & Ors V. Alhaji Mohammed Sani Abacha & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment)

This appeal ensued from the determined and relentless efforts invested by the Federal Republic of Nigeria, the 1st Appellant in recovering all its monies it believed were stashed away by its former President, Ibrahim Sani Abacha, the late father of the 1st and 2nd Respondents in several Banks in Switzerland. In 1999, the 1st Appellant engaged the services of one Mr Enrico Monfrini of Monfrini Crettol & Associes, Geneva, to make the announcement of the request for assistance or application for co-operation dated the 30th September, 1999.

In furtherance to that and through the office of the 2nd Appellant, the 1st Appellant addressed a letter to the Office of Federal De La Police, Berne, Switzerland on the 20th December, 1999 requesting for International Police Assistance in a criminal matter in the name of the Federal Republic of Nigeria. Then, on the 2nd October, 2003, the 1st Appellant made a strong worded representation to the Federal Office of Justice, Berne, Switzerland via a document shown at page 61 of the record of this appeal and entitled “Application For International Judicial Co-operation In The Criminal Case of The Federal Republic of Nigeria Against Abacha”. Several efforts and representations were made by the 1st Appellant through its legal representative and machinery.

The 1st and 2nd Respondents and the entire household of the late President Ibrahim Sani Abacha equally put in a concerted effort to wrestle the 1st Appellant to the ground and prove that the cash assets of the Family locked away in several Banks in Switzerland were genuinely earned by them. All these were articulated in the documents displayed at pages 110 and 140 of the record through their Barristers namely; De Pfyffeer & Associates, addressed to the Federal Office of Justice, Berne, Switzerland.

As per the record of this appeal, several deliberations took place which then culminated in the 52 page document shown at page 157 – 218 of the record, captioned “Judgment Of The Federal Office Of Justice (FOJ)” dated the 18th August, 2004. In the said judgment, the application sought for by the 1st Appellant was granted and an order was made therein handing over to the Federal Republic of Nigeria through its account at the Bank of International Settlements in Basle, the assets seized by the FOJ on the 22nd January, 2004.

The funds and the accounts from which they were seized were listed at pages 215 – 216 of the record. The 1st and 2nd Respondents and members of their family were disgruntled at the decision that they applied for the review of the judgment which was eventually heard by the Federal Supreme Court of Switzerland. The judgment of the Federal Office of Justice, Switzerland was upheld by the Federal Supreme Court of the Country.

Thereafter, a press release was made by the Federal Office of Justice on the 16th February, 2005 stating that USD458 million of the Abacha cash assets of USD 505 million that were frozen in Switzerland can be handed over to Nigeria. In consequence thereof, the 1st and 2nd Respondents (for themselves and on behalf of the beneficiaries in Islamic Law of the estate of Ibrahim Sani Abacha) commenced a proceeding against the Appellants and the 3rd Respondent in this appeal before the Federal High Court, Kaduna Division, in Suit No. FHC/KAD/CP/18/2005 for the Enforcement of their Fundamental Rights pursuant to the relevant laws mentioned thereunder.

It was in the course of the said proceeding in suit No. FHC/KAD/CP/18/2005 instituted by the 1st and 2nd Respondents against the Appellants and the 3rd Respondent herein, before the Federal High Court sitting at Kaduna, that the Appellants and the 3rd Respondent filed a Motion on Notice dated the 4th April, 2005 on the same day praying the lower Court for an order dismissing or in the alternative striking out the suit on the grounds that:

“(1) The suit and the reliefs sought are statute barred having not been commenced within 3 months of the accrual of the cause of action and therefore not maintainable in law.

(2) This Honourable Court lacks territorial jurisdiction to entertain the suit as the matters complained of all took place in Switzerland, a foreign country.

(3) This Honourable Court lacks the jurisdiction to entertain the suit because it has no jurisdiction to entertain claims under Islamic Law.

(4) The Court lacks the jurisdiction to entertain the suit because no question of human rights infringement is disclosed.

(5) This suit is caught by the doctrine of Res Judicata and issue estoppel, the issues having been earlier litigated by the parties and their representative interest in;

a) Suit No. FHC/ABJ/CS/347/2001: SULGRAVE HOLDINGS INC AND 19 OTHERS V. THE FEDERAL REPUBLIC OF NIGERIA AND THREE OTHERS and judgment delivered on 8th October 2003 by the Hon. Justice Jonah Stephen Adah of the Federal High Court, Abuja