MOHAMMED ABACHA v. FEDERAL REPUBLIC OF NIGERIA

CORAM

KUDIRAT M.O. KEKERE-EKUN, JUSTICE, SUPREME COURT

PARTIES

MOHAMMED ABACHA APPELLANTS

FEDERAL REPUBLIC OF NIGERIA

RESPONDENTS 

AREA(S) OF LAW

SUMMARY OF FACTS

The Respondent through the Attorney General of the Federation  instituted  an action at the High court  of the Federal  Capital  Territory, Abuja against the Appellant and one other for charges relating 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. At the trial Court, the Appellant and the other filed several applications before their plea could be taken. One of which bordered on the jurisdiction of the trial Court to entertain the action. The application was dismissed and the trial court affirmed that it had jurisdiction to entertain same.  The Appellant also brought a motion of notice praying for the suspension of consideration of the application and delivery of its ruling thereof by the trial Court and to refer to the Court of Appeal three questions of law which were objected to by the Respondent. The application was granted by the trial court referring the questions to the lower court. The court answered the questions referred to it in the negative against the Appellant. Being dissatisfied the Appellant has brought this appeal before this court.

HELD

Appeal dismissed

ISSUES

1. Whether the Court of Appeal was right when it held that the Forfeiture of Assets etc. (Certain Persons) Decree No. 53 of 1999 did not absolve the appellant Mohammed Abacha and all other persons mentioned in the schedule to the said law from further prosecution in the face of the clearer wordings of the said legislation and the previous interpretation given in identical circumstances to the said law by the State? (Grounds 1, 2 and 3)?

2. Whether the court below can be said to be correct when it rejected the appellant’s submission 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? (Grounds 4 and5)?

3. Whether the court below was right when it held that the office of the late Head of State – General Sani Abacha (deceased) 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 in this matter to the extent that they are made up of facts and allegations that PRIMA FACIE do not constitute any of the offences alleged? (Grounds 6, 7, 8 and 9)?

RATIONES DECIDENDI

JURISDICTION- WHAT JURISDICTION ENTAILS

‘Jurisdiction in contrast to judicial power is the authority or legal weapon which a Court must possess to decide matters that are litigated before it or take cognizance of matters presented in a formal way for its decision. ‘ PER ONNOGHEN, J.S.C

JURISDICTION- THE NATURE OF JURISDICTION

‘Jurisdiction may be limited as to the kind and nature of actions which a particular court may entertain or as to the area over which its judicial powers extend, or both. PER KEKERE-EKUN, J.S.C

AGGRIEVED PERSON-WHO IS AN AGGRIEVED PERSON

‘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 ‘ PER ARIWOOLA, J.S.C

IMMUNITY-WHETHER THE IMMUNITY GRANTED THE PRESIDENT, VICE PRESIDENT, GOVERNOR AND DEPUTY GOVERNOR BY SECTION 308 OF THE 1999 CONSTITUTION IS FOR LIFE

‘It is true that the Constitution confers absolute immunity on the President, Vice President, Governor and Deputy Governor in respect of civil or criminal matters during their tenure in office. See; Section 308 of the 1999 Constitution. Indeed, the provision clearly suspends the right of action or the right to judicial relief of an aggrieved party during the tenure of office of the officials mentioned therein. The immunity does not extend beyond the tenure in office, after which the official shall be liable to face trial. ‘ PER ARIWOOLA, J.S.C

RULE OF INTERPRETATION OF STATUTE-DUTY OF COURT TO INTERPRET THE PROVISIONS OF STATUTE CLEARLY BY GIVING THE PLAIN WORDINGS THEIR ORDINARY INTERPRETATION

‘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. PER ARIWOOLA, J.S.C.

“DEAL WITH’- MEANING OF THE PHRASE “DEAL WITH”

“The phrase – “deal with” means “to take action on, to be about or concern with” PER ARIWOOLA, J.S.C.

IMMUNITY-THE PURPOSE OF IMMUNITY AS GUARANTEED BY SECTION 308 OF THE 1999 CONSTITUTION

‘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.’ PER ONNOGHEN, J.S.C

‘FORFEITURE’- MEANING OF THE WORD “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”. PER ARIWOOLA, J.S.C.

CASES CITED

Alhaji   Jibrin   Bala   Hassan   Vs. Dr.Babangida Aliyu & Ors (2010) 17 NWLR (Pt.1223) 547; (2010) 11 SCM 59Global Excellence Comm. Ltd. & Ors vs Duke (2007) NWLR (Pt.1059) 22; (2007) 12 SCM (Pt. 2) 324; Tinubu Vs. I.M.B. Securities Plc (2001) 16 NWLR (Pt.740) 670; (200 Enyadike v. Omehia & 4 ORS (2010) 11 NWLR (pt.1204) 92 at 112.” – N.B.N. Ltd. Vs Shoyoye & Anor. (1977) ALL N.L.R. 168; (1977) 5 S.C. 110; (1977) LPELR – 1948(SC);Bronik Motors & Anor. Vs. Wema Bank Ltd. (1983) 14 NSCC226 @ 253.”Kraus Thompson Organisation Vs. National Institute for Policy and Strategic Studies NIPSS) (2004) 9 – 12 SCM (Pt.2) 53; (2004) 17 NWLR (Pt.901) 44Alhaja Afusat Ijelu & Ors Vs. Lagos State Development & Property Corporation & Ors (1992) NWLR (Pt.266) 414; (1992) LPELR 1464

STATUTES REFERRED TO

Forfeiture of Assets etc (Certain Persons) Decree No.53 of 1999The Constitution (Suspension and Modification) decree No. 107 of 1993.The 1999 Constitution of the Federal Republic of Nigeria The 1979 Constitution of the Federal Republic of Nigeria

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