➥ CASE SUMMARY OF:
Mohammed Abacha V. Federal Republic of Nigeria (FRN) (SC.40/2006, 17 January 2014)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Immunity;
Forfeiture of asset and prosecution.
➥ CASE FACT/HISTORY
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 between 17th 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Ismaila Gwazo, who was then National Security Adviser to the Head of State to apply for various sums of monies to be withdrawn from the Central Bank of Nigeria for “security Reasons”.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 In the result, the sum of $1,568,48317.03 and ?416,472,000 were withdrawn from the Central Bank of Nigeria through the appellant and one Abubakar Atiku Bagudu into their private foreign accounts in various countries.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.
During the period General Abdusalam Abubakar was in office, he set up a Special Investigation Panel to look into activities of the administration of late General Sani Abacha. The said panel was to investigate and recover monies illegally acquired by Public Officials and their agents. The panel investigated part of the case and recovered monies, properties and assets which led to the promulgation of Forfeiture of Assets etc. (Certain Persons) Decree No. 53 of 1999. By the said decree, both the appellant and his father, the late General forfeited their assets to the Federal Government. The said forfeited assets are contained in the schedule to the Decree. The panel was still investigating when the military handed over power to civilian administration of Chief Obasanjo which continued the investigation and recovery. The recovery and forfeiture led the Hon. Attorney General of the Federation to file the four criminal charges (supra) against the appellant and Abubakar Atiku Bagudu.
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.
➥ ISSUE(S)
I. Whether the Court below can be said to be correct when it rejected the appellant’s admission that the totality of the effect of Decree No. 53 of 1999 amounted to Executive or State promise not to prosecute any of the persons listed in the Schedule to the said Decree (Appellant inclusive) and that Government was thereby stopped from prosecuting in respect of any issue arising from compliance with the Law in issue?
II. Whether the Court below was right when it held that the office of the late Head of State General Sani Abacha, the nature of his government, the privileges and immunity enjoyed by him did not have any bearing on the charges filed by the State against the appellant?
➥ RESOLUTION(S) OF ISSUES
[APPEAL ]
↪️ ISSUE 1: IN RESPONDENT’S FAVOUR.
[THE APPELLANT IS NOT PROTECTED FROM PROSECUTION BY THE DECREE
‘The respondent had submitted and I believe rightly too that the persons affected with forfeiture of properties and those holding the properties indeed had no discretion, choice or an option in the matter. The forfeiture provision had robbed them of any right or entitlement on the said properties and assets. Hence, failure to give up would have earned any such person upon conviction a two year term of imprisonment without an option of fine. While the law talks about “any person who in intended compliance with this Decree deals with any of the properties etc.” It does not refer to those from whom the said properties had been forfeited to the government, including the appellant, as they can no longer deal with the properties that are not theirs but government’s property. The phrase – “deal with” means “to take action on, to be about or concern with” – See; Chambers Dictionary. I therefore agree with the court below in holding that the appellant had nothing to do and had no action to take with regard to the properties listed against his name in the Schedule after they had been forfeited to the Federal Republic of Nigeria. In other words after confiscating or seizing the said properties from the appellant in the manner it did by the Decree, the appellant was not entitled to any compensation whatsoever. In the same vein, it stands to reason that the law makers did not and could not have had in mind, the appellant and others, whose properties were forfeited pursuant to the Decree, as entitled to be indemnified in respect of the dealings with the properties forfeited.’
THERE IS NOWHERE WHERE THE APPELLANT IS PARDONED FROM PROSECUTION
‘I am unable to see in any part of Decree No. 53 of 1999 on Forfeiture of Assets etc (Certain Persons) where the Government did promise or can be said to have promised or undertaken not to prosecute any person including the appellant for any offence. Neither the court below nor this court can determine the allegations contained in the 123 counts charge preferred against the appellant before the trial court at this stage. Indeed, only the trial court before which court the proof of evidence had been filed has the competence to consider same, However, the only way by which respondent can stop the prosecution is to give legal notice that a law suit or prosecution has been abandoned. That is what, in Latin words is called “nolle prosequi.” This is a formal entry on the record by the prosecuting officer by which he declares that he will not prosecute the case further, either as to some of the counts of the indictment, or as to part of a divisible count, or as to some of the persons accused or altogether. It is a judicial determination in favour of accused and against his conviction, but it is not an acquittal nor is it equivalent to a pardon. See; Black’s Law Dictionary, Ninth edition page 1147.’]
.
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↪️ ISSUE 2: IN RESPONDENT’S FAVOUR.
[THE APPELLANT ENJOYS NO IMMUNITY AND NOT COVERED BY HIS FATHER’S SUPPOSED IMMUNITY
‘Whatever immunity was enjoyed by the appellant’s father while he was in office before his demise, cannot be enjoyed by the appellant to prevent the respondent from prosecuting him for his indictment.’
‘There is certainly no doubt that the appellant is the person who is charged with various offences of alleged crimes committed against the State. He is entitled to make a “no case submission” after the prosecution would have closed its case and he is called upon to put up his defence if he has any. The appellant’s father is not on trial at all.’
‘I therefore cannot agree more with the court below as stated above. As the late Head of State, General Sani Abacha is not on trial, the appellant who is on trial should go and face the music at the trial court and then adduce whatever defence he considers available to him. Whatever immunity the father had when he was in office could not be made available for the appellant.’
‘The question of immunity of a Head of State from civil or criminal proceedings enures to the President or Head of State during his period of office and not thereafter. The purpose of the immunity is to allow the incumbent President or Head of State, or Vice President, Governor or Deputy Governor, a completely free hand and mind to perform his or her duties and responsibilities while in office; to protect the incumbent from harassment. The immunity, however, does not extend or cover the period immediately after leaving office neither does it extend to include his family members during and after the period of his incumbency. It follows therefore that even if General Sani Abacha was to be alive the immunity he enjoyed under the law and Constitution is personal to him and limited to his period of office as he can be proceeded against immediately he left office for offences committed while occupying the office of Head of State. His immunity, however, would not, in any circumstance cover his son, the appellant in this case so the argument to the contrary is clearly misconceived and without legal foundation. See sections 267 of the Constitution of the Federal Republic of Nigeria, 1979 or section 308 of the Constitution of the Federal Republic of Nigeria, 1999.’]
.
.
.
✓ DECISION:
‘The appeal is adjudged unmeritorious and vexatious. Accordingly, it is hereby dismissed. The decision of the court below given on 18th April, 2005 is affirmed.’
➥ FURTHER DICTA:
⦿ MEANING OF FORFEITURE
The word “forfeiture” means – “the divestiture of property without compensation. The loss of a right, privilege, or property because of a crime, breach of obligation, or neglect of duty”. It follows that, “title in those assets and properties forfeited is instantaneously transferred to another, such as the government”. See; Black’s Law Dictionary, Ninth Edition Page 722. — O. Ariwoola JSC.
⦿ WHERE PROVISION OF STATUTE IS CLEAR AND UNAMBIGUOUS
In the interpretation of Statutes, the cardinal rule is that where the provisions of a Statute is clear and unambiguous, the duty of the court is to simply interpret the clear provision by giving the plain wordings their ordinary interpretation without more. It is not the function of a court of law to bend backwards to sympathise with a party in a case in the interpretation of a statute merely for the reason, that the language of the law seems harsh or is likely to cause, hardship. See; Kraus Thompson Organisation v. National Institute for Policy and Strategic Studies (NIPSS) (2004) 9-12 SCM (Pt. 2) 53; (2004) 17 NWLR (Pt. 2001) 44. — O. Ariwoola JSC.
⦿ WHAT IT MEANS TO BE AGGRIEVED
To be aggrieved, a person must have legal rights that are adversely affected, having been harmed by an infringement of legal rights. A person aggrieved must be a person who has suffered a legal grievance, a person against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something or wrongfully affected his title to something. See; In re: Alhaja Afusat Ijelu and Ors v. Lagos State Development and Property Corporation and Ors (1992) NWLR (Pt. 266) 414; (1992) LPELR 1464 … The Court below was therefore correct in holding that in the instant context, the expression “person aggrieved” refers to any person whose legal right was invaded by the forfeiture order, whose financial interest was directly and adversely affected by the said Decree and whose right or property may be established or divested. The respondent herein cannot come under these description. — O. Ariwoola JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Olukayode Ariwoola, JSC.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
J.B. Daudu, SAN.
⦿ FOR THE RESPONDENT(S)
Mr. D.C. Enwelum.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
Forfeiture of Assets etc (Certain Persons) Decree No. 53 of 1999.
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
