Mohammed Abacha V. Federal Republic Of Nigeria (2014)

LAWGLOBAL HUB Lead Judgment Report

OLUKAYODE ARIWOOLA, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Abuja Division, delivered on the 18th day of April, 2005 whereby it resolved against the appellant, the questions that were referred to it by the High Court of the Federal Capital Territory, Coram: Justice Saleh, CJ.

The situation that culminated into this appeal briefly is as follows:

The respondent through its Honourable Attorney General, in exercise of his powers under Section 174 of the 1999 Constitution had filed four (4) different charges against the appellant and one Abubakar Atiku Bagudu, (now a Senator of the Federal Republic of Nigeria) at the High Court of the Federal Capital Territory, Abuja. The said charges were;

(a) Charge No. CR/21/2000 of 33 Counts

(b) Charge No. CR/22/2000 of 9 Counts

(c) Charge No. CR/23/2000 of 45 counts

(d) Charge No. CR 24/2000 of 33 Counts

The charges relate mainly to; offence of conspiracy, receiving stolen property dishonestly and concealing stolen money, all pursuant to Sections 97(i), 317 and 319 of the Penal Code respectively.

Before the plea of the accused could be taken by the trial court, the appellant and the other filed a couple of applications, including one challenging the jurisdiction of the trial court. That application was dismissed and the trial court affirmed that it has jurisdiction to adjudicate on the matter. In yet another application, the applicants sought reference to the court below by the trial court. I shall come back to this anon. The reliefs sought had been –

(a) An order quashing the charges in charge No. CR/24/2000 and terminating all criminal proceedings connected therewith on the ground that based on Section 5 of Decree No. 53 of 1999, no criminal proceedings shall lie against any of the accused persons who have already complied with the prevailing law.

(b) An order terminating the instant criminal proceedings against the applicant on the ground that based on Decree No. 107 of 1993 and other Decrees in that regard, the former Head of State was empowered to act as he did in the circumstances leading to these charges.

The facts of this case goes thus:

The appellant is the second son of late General Sani Abacha who was the Head of State and Commander-in-Chief of the Armed Forces of the Federal Republic of Nigeria. While in office between17th November, 1993 and 8th June, 1998 the appellant’s father was alleged to have instructed one Alhaji Ismaila Gwazo, who was then National Security Adviser to the Head of State to apply for various sums of monies to be withdrawn from the Central Bank of Nigeria for “security Reasons”. The late General Abacha approved the said various sums. In the result, the sum of $1,568,48317.03 and 416,472,000 were withdrawn from the Central Bank of Nigeria through the appellant and one Abubakar Atiku Bagudu into their private foreign accounts in various countries. The said funds were delivered to the late General by Alhaji Gwarzo while the appellant collected from his father and transferred same to Abubakar Atiku Bagudu who carried the money abroad and lodged into their said various foreign bank accounts where the appellant and Bagudu were the only signatories. The said monies lodged in the foreign accounts were still in the accounts when the above charges were filed and the accounts were frozen.