For the second time, the Supreme Court has rejected the application by Ali Abacha, a brother to the former Head of State, Sani Abacha, to unfreeze accounts traced to the late dictator and his relatives in the United Kingdom, Switzerland, Jersey, Liechtenstein and Luxembourg.
In a unanimous ruling on Friday, a five-man panel, led by Justice Sylvester Ngwuta held that Ali Abacha’s case was statute-barred, as at when it commenced in April 2004, at the Federal High Court in Kaduna.
A case is considered statute barred if it involves a debt that the creditor took too long to take legal action to recover it. In practical terms, it means the debt, even though may still exists technically, has been written off and cannot be recovered.
The judgment was in respect of an appeal: SC/359/2010, filed by Alhaji Ali Abacha, on behalf of his other siblings.
In the lead judgment prepared by Justice Kudirat Kekere-Ekun, but read by Justice Ejembi Eko, the apex court submitted that, having dismissed a similar appeal in an earlier riling in February last year, there was no reason to depart from its reasoning in that case brought by Abba Mohammed Sani on behalf of the Abacha family.
In giving the ruling, the court identified the counsel to the appellant, Reuben Atabo, as the same legal representative in his earlier appeal.
“No new superior arguments were proffered here to warrant a departure from the decision in the case of Alhaji Sani (Abacha), earlier decided. This appeal fails, and it is hereby dismissed,” the court said in its judgment.
The appeal by Abacha’s siblings was against the July 19, 2010 unanimous judgment by a three-man panel of the Court of Appeal, Kaduna division, which set aside the September 24, 2004 judgment by Justice Mohammed Liman of the Federal High Court, Kaduna, earlier given in favour of Ali Abacha.
Ali Abacha had sued the Federal Government at the Federal High Court, Kaduna in 2004, challenging, among others, the 1999 decision by the Olusegun Obasanjo administration to order the freezing of all accounts traced to the late Abacha, his family members and relatives in the United Kingdom, Switzerland, Jersey, Liechtenstein and Luxembourg.
The freezing order was given by the government through the then-Attorney General of the Federation (AGF) and Minister of Justice, Kanu Agabi, a senior advocate of Nigeria (SAN).
The Abacha’s had prayed the court to, among others, void the freezing of the order on the accounts on the grounds that the AGF lacked the powers, under the Banking (Freezing of Accounts Act, Cap 29, Laws of Nigeria, to have given the order.
Also, the government had requested the foreign nations where those monies were found to freeze his accounts and those of the companies in which he was a director.
In his judgment of September 24, 2004, Justice Liman had upheld the claims by Ali Abacha and granted all the reliefs sought, a decision the AGF, listed as the sole defendant, appealed at the Court of Appeal, Kaduna division.
In their judgment on July 19, 2010, in the appeal, CA/K/71/2005, Justices John Inyang Okoro, Baba Alkali Ba’aba and Mohammed Lawal Garba of the Court of Appeal, Kaduna, were unanimous in holding that the suit was statute-barred.
Also, the Justices held that the AGF was not accorded fair hearing by the Federal High Court before proceeding to set aside the judgment by Justice Liman, a decision on which Ali Abacha appealed to the Supreme Court, which the apex court decided on Friday.
On February 1, 2020, a five-member panel of the Supreme Court in its judgment in a previous appeal, No. SC68/2010 by Abba Mohammed Sani, held, among others, that it was too late for the Abacha family to query the decision taken on the matter by the Federal Government in 1999.
The order directing the freezing of the affected accounts was contained in a letter by the then Minister of Justice and Attorney General of the Federation (AGF), Kanu Agabi (SAN).
Justice Chima Nweze, who wrote the panel’s lead judgment held, among others, that in view of the evidence presented by parties in the matter, he was left with no other options than his ruling.
He said the decision was to uphold the earlier concurrent decisions of the two lower courts – the Federal High Court, Kano and the Court of Appeal, Kaduna division, to the effect that the suit was statute-barred.
“In all forms, with the eloquent submission of the respondents’ counsel, and submissions anchored on the admitted evidence, I have no hesitation in affirming the concurrent decisions of the lower courts,” Justice Nweze said.
“Accordingly, I hereby enter an order dismissing this appeal. I further affirm the concurrent findings and decisions of the lower courts, appeal dismissed,” he added.
A review of court documents on the matter shown that then-President Olusegun Obasanjo, in December 1999, authorized the then AGF, Agabi, to request the Swiss authorities to freeze all bank accounts held in its jurisdiction by the late Head of State, General Abacha, his children, servants, agents and any other individuals or companies linked to them, between 1993 and 1998.
The Nigeria government also requested the Swiss authorities to seize and detain all banking and other documents relating to the affected accounts, charge and prosecute all holders of such accounts, in order to recover and pay over to the Nigerian government all monies falsely and fraudulently taken from the government and people of Nigeria.
The government had engaged a foreign financial investigator, Enrico Monfrini of Hauchomann & Bottage in Geneva, Switzerland, to assist in recovering “all looted monies by Gen Abacha and his family members and other public servants and third parties who have used their position or participated as accomplices to misappropriate public funds”.
Consequently, all accounts of the Abachas, found in Switzerland, United Kingdom, Jersey, Liechenstein and Luxembourg were frozen, a development the siblings of the late former dictator challenged with the suit filed on January 28, 2004.
Secret deal with Jonathan
In 2014, the siblings of the Abacha family had entered into a secret plea bargain deal with the then Goodluck Jonathan administration on the recovery of the looted funds.
Under the deal, the family agreed to forfeit agreed percentage of the funds to the government to spare them the ordeal of undergoing prosecution over billions of dollars stolen from Nigeria and starched away in Swiss and other European banks.
PREMIUM TIMES had reported how President Jonathan authorized his Attorney-General and Minister of Justice, Mohammed Adoke, to approve the terms of the secret deal on behalf of the Federal Government.
The agreement granted members of the Abacha family perpetual reprieve against criminal prosecution either in Nigeria or abroad, in exchange for a sizeable portion of the loot to be repatriated by the Swiss government.
Details of the deal had leaked, resulting in a coalition of civil society groups demanding the then-incoming Muhammadu Buhari administration to discard the agreement and recover the loot to the Nigerian people.
The Coordinator of the Nigeria Network on Stolen Assets (NNSA), David Ugolor, also asked the UK, U.S. and Swiss governments, along with the World Bank and the international communities to reject the agreement and all recovered funds were repatriated to Nigeria.