FEDERAL REPUBLIC OF NIGERIA & ORS v. ALHAJI MOHAMMED SANI ABACHA & ORS (2014)

FEDERAL REPUBLIC OF NIGERIA & ORS v. ALHAJI MOHAMMED SANI ABACHA & ORS

(2014)LCN/6809(CA)

RATIO

WORDS AND PHRASES: BIAS.

Now, bias, in its ordinary meaning, is opinion or feeling in favour of one side in a dispute or argument resulting in the likelihood that the court so influenced will be unable to hold an even scale. It is a predisposition to decide a cause or an issue in a certain way, which does not leave the mind perfectly open to conviction. It refers to a mental attitude or disposition of a Judge toward a party to the litigation, and not to any views that he may entertain regarding the subject matter involved.

Bias in relation to a court or tribunal is an inclination or preparation or predisposition to decide a cause or matter in a certain pre-arranged way without regard to any law or rules. The likelihood of bias may be drawn or surmised from many factors such as corruption, partnership, personal hostility, friendship, group membership or association and so towards or involving a particular party in a case – Usani Vs Duke (2006) 17 NWLR (Pt 1009) 610. Foreknowledge of facts is an aspect of bias. Where a court has foreknowledge of the facts it does not come to the dispute with an openness of mind that would enable it to hold an even scale. Therein lies the unfairness. Foreknowledge of primary facts disqualifies a court from hearing a matter. Another aspect of bias is that the court is likely to be biased in favour of its previous decision – Kenon Vs Tekam (2001) 14 NWLR (Pt.732) 12. Per HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

WHETHER A CAUSE OF ACTION IS DETERMINED BY THE LAW AT THE TIME THE JURISDICTION OF THE COURT IS INVOLVED.

A cause of action is governed by the applicable law in force at the time the cause of action accrued and not the law at the time the jurisdiction of the Court is involved. See: Mustapha vs. Governor of Lagos State (1987) 2 NWLR Part 58 page 539; Governor of Oyo State vs. Folayan (supra); Kasikwu Farms Ltd vs. A.G. Bendel State (1986) 1 NWLR Part 19 695; Omisade vs. Akande (1982) 2 NWLR Part 55 158.” (Underlining mine). Per THERESA NGOLIKA ORJI-ABADUA, J.C.A.

CONSIDERATIONS IN DETERMINING THE VENUE FOR THE TRIAL OF ANY MATTER

WORDS AND PHRASES: COURSE OF ACTION

For the purpose of litigation, a cause of action has been comprehensively defined to entail the fact(s) or combination of fact(s) which gives rise to a right to sue and it consists of two elements, the wrongful act of the defendant which gives the Plaintiff his cause of complaint and the consequent damage. It is thus constituted by the aggregate or bundle of facts which the law will recognize as giving the Plaintiff a substantive right to make a claim for remedy or relief against the defendant. See: Fadare & Ors. v. A.G. of Oyo State (1982) 4 SC 1 at pp.6 – 7; Egbe vs. Adefarasin (No.1) (1985) 5 SC 50 at P.87; (1985) 1 NWLR Part 3 P.549; Alese vs. Aladetuyi (1995) 7 SCNJ 40 at p.50; (1995) 6 NWLR Part 403 527; Savage vs. Uwaechia (1972) 1 NLR Part 1 251 at p.257; Egbue vs. Araka (1988) 3 NWLR Part 84 598; Adesokun vs. Adegorolu (1997) 3 SCNJ 1 at P.16; (1997) 3 NWLR Part 493 261; Kusada vs. Sokoto N.A. (1968) 1 All NLR 377 at 381; Bello vs. A.G. Oyo State (1986) 5 NWLR Part 45 828 at P.876. Per THERESA NGOLIKA ORJI-ABADUA, J.C.A.

WHETHER FOR A CLAIMANT TO ESTABLISH A CAUSE OF ACTION, THERE MUST BE BEFORE THE COURT JURISTIC PERSONS AGAINST WHOM THE COURT MAY MAKE AN ENFORCEABLE ORDER

Thus, existence of cause of action is an indispensable prerequisite. This presupposes that for the claimant to establish a cause of action there must be before the court juristic or judicial person(s) who can make the claim and against whom the Court can make an enforceable order. See: A.G. Kwara State vs. Olawale (1993) 1 SCNJ 208 at p.235: (1993) 1 NWLR Part 272 645. Per THERESA NGOLIKA ORJI-ABADUA, J.C.A.

WHETHER A CAUSE OF ACTION CAN GIVE RISE TO MORE THAN ONE REMEDY

As a cause of action can give rise to more than one remedy and where this is so, all the remedies must be claimed in the same action and not to be pursued by way of separate actions. If one remedy has been claimed in one separate action, the claim for the other is barred by the plea of res judicata. See: Savage vs. Uwaechia (supra); Ijale vs. A.G., Leventis & Co. Ltd (1961) All NLR 762; (1959) SCNLR 255; Fadare vs. A.G. Oyo State (supra). A plea of res judicata divests a court of jurisdiction. Per THERESA NGOLIKA ORJI-ABADUA, J.C.A.

In The Court of Appeal of Nigeria

On Friday, the 31st day of January, 2014

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

b) Diverse other suits disclosed by processes filed by the Applicants/Respondents in this suit.

(6) The Applicants/Respondents’ verifying affidavit does not comply with the provisions of the law.

(7) Approval was not obtained from the Court to commence the suit in a representative capacity.

(8) The suit is an abuse of the process of this Honourable Court.”

It may be necessary to state the reliefs sought by the 1st and 2nd Respondents against the Appellants and the 3rd Respondent in the suit. It was an action commenced under the Fundamental Rights Special Procedure Rules wherein the 1st and 2nd Respondents sought the following reliefs:

“(i) A declaration that the grant by the Federal Office of Justice of the Federal Republic of Switzerland of the applications for mutual assistance dated the 20th of December 1999 and 21st May 2000 leading to the decision to repatriate to the defendants the cash assets of the following companies to wit Sulgrave Holding Inc, Braven Hording Inc, Tradil Oversea’s Inc., Peltora Establishment, Olmar Establishment and Blue Rock Properties SA, Newland Overseas Ltd, Genesis Holdings Ltd, Mercury Aviation Services Ltd and Vectra Commodities Ltd and other entities such as SUEZE, LEZNED, TUMEGO, SUNG, TEXLE and MORRIS who maintained assets in named Swiss Banks in respect of which the applicants had controlling interests, is in the absence of a valid criminal trial of judgment in civil proceedings by a court of competent jurisdiction unconstitutional, null and void and contrary to the African and United Nations Charter on Human Rights.

(ii) A declaration that in the absence of due process guaranteed under section 36 of the Constitution of the Federal Republic of Nigeria and under the African and United Nations Charter on Human Rights, the defendants cannot accept the proceeds consisting of frozen and repatriated funds from the Swiss accounts of the companies described above, all being subject matter of the application for mutual cooperation between Nigeria and Switzerland and in respect of which the applicant has controlling interest or pay those funds into the Federation Account as the consequence will be the distribution and the dissipation of those funds without ascertainment of their origin, which the applicants claim ownership of and without due process of law in the recovery of monies suspected to be of criminal origin and alleged to belong to the 1st defendant.

(iii) An order directing the 3rd, 4th and 5th defendants to keep the funds described above and received from the Swiss Authorities in an escrow account, untouched and not distributed between the respective Governments of the Federal Republic of Nigeria or expended by the latter in any manner whatsoever unless and until consfiscatory (sic) orders have been granted by a court of competent jurisdiction and by due judicial process or if cleared by Nigerian courts of any criminal conduct as to the said funds, release forthwith these funds to the applicants.

(iv) An injunction restraining the defendants from distributing all the funds received from the Federal Government of Switzerland, based as they were on unproved criminality of the source of these funds, which the applicants have controlling interest, alternatively restraining defendants from placing them in the Federation Account in the absence of due process of the law as recognised by the constitution of the Federal Republic of Nigeria 1999.

(v) An interim order in the terms of prayer (iv) to wit restraining or staying the respondents from distributing or dealing with in any manner (other than its preservation in an escrow account) funds described above to be received or received from the Federal Government of Switzerland pending the determination of this application.”

The reliefs were anchored on the grounds that:

“1. The steps taken by the Federal Government of Switzerland purportedly in acceding to the request of the 1st defendant leading to the confiscation and transfer of the applicants funds to the 2nd – 5th respondents is unjustifiable and an affront to the rule of law in that no court of law, domestic or foreign has found the applicant(s) liable in crime in respect of part or the whole finds (sic) described herein.

2. The absence of any conviction or other form of endorsement of criminal liability either in Nigeria or Switzerland or any other part of the world renders any confiscatory action particularly that described in this application null and void as seizure without trial violates the bill of rights as contained in the Nigerian Constitution, African Union Charter and the United Nations Human Rights Charter.

3. There is a strong possibility that if charged to court for offences alleged, the applicants would be discharged. What then becomes of their liquid assets that have been shared by 2 friendly countries in contravention of domestic and international rules, treaties and conventions? Even now, the presumption of innocence inures in their favour and it is manifestly high-handed for the respondents to take possession of a citizen’s assets who has been denied the right to a hearing under due process of the law.

4. In resolving such unwholesome situations, such as demonstrated above, this Honourable court is empowered to preserve the subject matter of the entire dispute – to wit – the funds in issue and to keep them until such a time that all parties would have conformed and complied with the fundamental rules laid down by domestic and international legislations concerning criminal trials.”

It was after being served with the Originating Motion of the 1st and 2nd Respondents that the Appellants filed the Motion on Notice raising preliminary objection to the jurisdiction of the lower Court to entertain the suit. Issues were joined by the parties on the preliminary objection, and arguments were tendered by the parties in that respect.

The trial Court was quite detailed in its consideration of the issues, that at the end, it overruled the preliminary objection of the Appellants and assumed jurisdiction hence this appeal. The Notice of Appeal dated 3/11/05 is founded on six grounds of appeal.

The parties filed and exchanged their Briefs of Argument. Four issues were propounded by the Appellants for consideration by this Court. They read:

“1. Whether the suit is not statute barred by virtue of section 2(a) of the Public Officers Protection Act, having been commenced more than three months after the letters of request for mutual assistance were written.

2. Whether the Applicants were not estopped by the doctrine of res judicata and issue estoppel from the prosecuting the suit.

3. Whether the lower Court had jurisdiction to entertain the matter.

4. Whether the suit disclosed a reasonable cause of action.”

The 1st and 2nd Respondents in turn postulated four issues as follows:

“A. Whether Section 2(a) of the Public Officers Protection Act applies to this suit which was commenced barely a month from the date of the act complained about.

B. Whether the doctrine of res judicata and issue estoppel apply to the 1st and 2nd Respondents’ application before the trial Court.

C. Whether the Federal High Court sitting in Kaduna was right to hold that it has jurisdiction to this suit (Ground 4).

D. Whether the suit of the 1st and 2nd Respondents discloses a reasonable cause of action (Ground 6).”

The 3rd Respondent did not file Brief of Argument.

It was contended by the learned Counsel for the Appellants, D. C. Enwelum, Esq; that for section 2(a) of the Public Officers Protection Act, to apply, the Defendant must be an individual public officer or a public institution, and the act or conduct giving rise to the suit must have been in pursuance of a public duty. He stated that all the Respondents herein are Public Officers and with the letters of request to the Swiss Government were in the performance of a Public duty. He referred to the remarks of the lower Court that the 1st and 2nd Respondents, relief No. 1 does not extend to the letter of request for mutual assistance and then queried ‘who are the parties to the action, who are the Plaintiffs the reliefs were directed at? He answered it was the Federal Government of Nigeria and its agencies. He argued that since the Federal Government of Nigeria and its agencies are the parties on record in the suit, against whom the claims are directed, the Government and its agencies are entitled to rely on the provisions of the Public Officers Protection Act. He referred to paragraph 4(i) – (vii) of the Applicants’ affidavit in support of their Originating Motion which indicated that Swiss Government began to take action on the letters for mutual assistance years before the final decision was taken to return the funds, i.e., the request for criminal investigation in Switzerland was granted long before the decision to return the funds to Nigeria. He then stressed that if as were portrayed by the trial Court, the Respondents ought to have challenged the conduct of the Federal Office of Justice of the Federal Republic of Switzerland in Switzerland and not in Nigeria. He relied on sections 6(1), 251 and 287 of the 1999 Constitution of the Federal Republic of Nigeria and the cases of Jonah Onyebuchi Eze vs. Federal Republic of Nigeria (1987) 2 SCNJ page 76 at 82; International Niger Build Construction Company Limited & 2 Ors vs. Olalekan Ayinde Giwa (2002) FWLR Part 107 page 1312 at 1336 – 1337 para E – D and submitted that the Constitution of Nigeria did not extend to the territorial jurisdiction of the lower Court beyond Nigeria.

Dealing with issue No. 2, i.e., whether the Applicants were not estopped by the doctrines of res judicata, and issue estoppel from prosecuting the suit, Learned Counsel made reference to the assertions in the affidavit in support of the Motion dated the 4th April, 2005 which exhibited the Ruling in suit No. FHC/ABJ/CS/374/2003 in which the 1st Respondent and SULGRAVE HOLDINGS INC, BLUE ROCK PROPERTIES, BARVEN HOLDINGS, OLMAR ESTABLISHMENI PELTORA ESTABLISHMENT, TADIL OVERSEAS, MOHAMMED SANI ABACHA sued the 1st and 2nd Appellants at the Federal High Court, claiming substantially the same reliefs as were in the suit leading to this appeal. The said suit was dismissed for being statute barred. He explained that the 1st Respondent was the 19th Plaintiff in the aforementioned suit while the Defendants therein were the 1st and 2nd Appellants herein and Inspector General of Police and the National Security Adviser. He submitted that the parties in the two suits are the same, the defendants were also Federal Government of Nigeria and its agencies. He reproduced the reliefs sought in the earlier suit and summed up that in the earlier suit, the Court was invited to (1) declare that the letters of request for mutual assistance made by the Government of Nigeria to the Government of Switzerland and other countries infringed the Plaintiffs’ right to property and fair hearing and were therefore unconstitutional, null and void; and (2) restrain the Government of Nigeria from relying on any order of the said letters of request and any steps taken thereon to the benefits of the said defendants in so far as it inures from the said letters of request. Such advantage would of course include acceptance of funds recovered by virtue of such letters. He contended that what the Applicants in the present suit are seeking are substantially the same reliefs. He submitted that res judicata is a rule of law which bars a litigant from relitigating on a matter that has already been decided upon by a Court of competent jurisdiction. He referred to Section 84 of the Evidence Act, Cap 112 Laws of the Federation of Nigeria, 1990 and the cases of Odeh vs. Ameh (2004) 4 NWLR Part 863 page 309; The Honda Place vs. Globe Motors Ltd (2005) 14 NWLR Part 945 page 273; Etubon Udoette Ebong Bassey & 2 Ors vs. Essien Akpan Bassey & 4 Ors (2009) 12 NWLR Part 1156 page 617 at 633 paragraphs B – H, per Orji-Abadua, J.C.A.; Oyekola vs. Ajibade (2004) 17 NWLR Part 902, 356; Ogbogu vs. Ugwuegbu (2003) 10 NWLR Part 827 189 at 210 – 211, C – C; per Ejiwunmi JSC and Fidelitas Shipping Co. Ltd vs. V/O Exportchleb (1966) 1 Q.B. 630 at 68 and submitted that to sustain a plea of res judicata, the party pleading it must satisfy the following conditions; (a) that the parties in the present suit are the same as in the previous suit; (b) the issues and subject matter are the same; (c) the adjudication in the previous case must have been given by a Court of competent jurisdiction, and (d) the Court must have determined the issue between the parties.

He submitted that the Appellants satisfied all the requirements. Counsel further stated that once an issue has been raised and distinctly determined between the parties, the parties or their privies cannot relitigate on the issue. He cited Adebo vs. Omisola (2005) 2 NWLR Part 909 page 149, Okposin vs. Assam (2005) 14 NWLR Part 945 page 495, Oyekola vs. Ajibade (2004) 17 NWLR Part 902 page 356. He further made reference to Ogbogu vs. Ugwuegbu (2003) 10 NWLR Part 827 page 189 at 210 – 211 paragraphs G – C per Ejiwummi, J.S.C.; Military Administrator Benue State vs. Ulegede (2001) 17 NWLR Part 741 page 194 at 224 – 225 paragraphs G – B and Afolabi vs. Gov. Osun State (2003) 13 NWLR Part 836 page 119 and submitted that once one or more of any such issue have been distinctly raised in a cause of action and determined between the same parties in a court of competent jurisdiction, neither party, his servants, agent or privy is allowed to reopen or relitigate any of such issues all over again in another action between the same parties or their agents or privies. He stated that the principle of estoppel is that there must be an end to litigation, and the Federal High Court having decided in another suit involving the same parties that a challenge to the validity of the letters of request is statute barred, does not have the jurisdiction to hear the matter again. He then contended that the suit does not disclose any reasonable cause of action, therefore the Applicants are estopped from maintaining the present suit.

In arguing issue No. 3, whether the lower Court had jurisdiction to entertain the matter, the learned Counsel leaned on the decisions in the cases of Dr. Taiwo Oloruntoba-Oju & 4 Ors vs. Professor S. O. Abdulraheem (2009) 13 NWLR Part 1157 page 83 at 124 para A – D, E – G, 124 – 125, H – A; Madukolu vs. Nkemdilim (1962) 2 SCNLR 341; Inah vs. Ukoi (2002) 9 NWLR Part 773 page 563; Chief Emmanuel Eze Onwuka vs. Engr. Samuel Ononuju (2009) 11 NWLR Part 1151 page 174 at 214 para B; Ajayi vs. Military Administrator Ondo State (1997) 5 NWLR Part 504 page 237 at 259, A – B; R.T.C. vs. F.O.B. Investment Ltd (2001) 6 NWLR Part 708 page 246 at 262; FBN Plc vs. Abraham (2003) 2 NWLR Part 803; Bhojwani vs. Bhojwani (1996) 6 NWLR Part 457 page 661 at 666; U.B.A. vs. Coker (1996) 4 NWLR Part 441 page 239 at 250 -253; A.S.T.C. vs. Quorum Consortium Ltd (2004) 1 NWLR Part 855 page 601 at 622 – 629, H – D; Alh. Ali Abacha vs. Attorney General of the Federation; Mercury Aviation Services Ltd vs. Attorney General of the Federation; Kenon vs. Tekam (2001) 14 NWLR 732 page 12 at 42; P.D.P vs. K.S.I.E.C (2005) 15 NWLR Part 948 page 230 at 250, D – G and Basrsoum vs. Clenessy Int. (1999) 12 NWLR Part 632 Page 516. He stressed that if a Court lacks jurisdiction to entertain a matter, the proceedings, no matter how well conducted will be a nullity. He referred to the finding of the trial Court that the complaints of the Applicants i.e. the 1st and 2nd Respondents herein were against the action of the Swiss Government and its recognition that Nigerian statutes do not apply to the Swiss Government, meaning therefore, that the learned trial Judge presiding over a Nigerian Court does not have jurisdiction in the matter. He contended that actions against a foreign State are outside the jurisdiction of Nigerian Courts including the Federal High Court, Kaduna. He stated that Section 251 of the Constitution of the Federal Republic of Nigeria (as amended) and 7 – 18 of the Federal High Court Act defined the jurisdictional limit of the Federal High Court and so did Section 287 of the said Constitution provide that the decision of the Federal High Court shall be enforced within Nigeria. Relying on the opening Articles of the United Nations Charter, it was contended that Nigeria is bound by Customary Rule of International Law and most of bilateral and multilateral to recognize and respect the sovereignty and territorial judicial integrity of other nations. He also took cognizance of the decision of this court in R.T.C. vs. F.O.B. Investment Ltd (supra) that no Nigerian Court has any jurisdiction to try a suit brought by a Nigerian citizen concerning a contract to be performed in America notwithstanding that the suit involved a Nigerian. He submitted that the lower Court contradicted itself by holding on the one hand that Nigerian legislation do not apply to the case and holding on the other hand that it had jurisdiction over the case. He further contended that Nigerian Courts cannot make orders against foreign Country and vice versa.

Learned Counsel further referenced the provisions of Order 11 Rule 3 of the Federal High Court (Civil Procedure) Rules 2000, and submitted that a suit commenced in a wrong judicial division shall be transferred to the appropriate judicial division once the defendant raises objection to the jurisdiction of the Court. He contended that Kaduna was not the appropriate venue for the trial. It had no connection with the facts of the case. He stressed that the facts of the case took place in Switzerland, a foreign country, while all the Respondents reside in Abuja. He further stressed that the Respondents in the suit are the Federal Government of Nigeria and its agencies and by Section 298 of the Constitution (as amended) Federal Capital Territory Abuja is the capital of the Federation and the seat of the Government of the Federation. He further stressed that by Order 11 of the Rules of the Federal High Court, Abuja is the residence of the Federal Government of Nigeria. Learned Counsel further emphasized that Courts should not be sentimental about jurisdiction but should decline adjudication when they do not have jurisdiction. He therefore, urged that issue No. 3 be resolved in favour of the Appellants.

Turning to issue No. 4, learned Counsel submitted that having admitted that the matter had been contested between the parties right up to the Supreme Court of Switzerland, the present action is obviously an abuse of process. They then urged that the appeal be allowed.

The 1st and 2nd Respondents’ first issue is whether section 2(a) of the Public Officers Protection Act applies to the suit which was commenced barely a month from the date of the act complained about. It was contended on behalf of the 1st and 2nd Respondents by their Learned Counsel that the suit was commenced within three month period of the conduct or anticipatory conduct i.e. the threat to release the funds in issue by the Swiss authorities which would have severely affected the right of the Defendants. He explained that the claim was ignited by the grant of the request vide a press release dated 16th February, 2005.

Submitting in respect of the 1st and 2nd Respondents’ second issue, i.e., whether the doctrine of res judicata and issue estoppel apply to the 1st and 2nd Respondents’ application before the trial Court, learned counsel sought refuge from the decided authorities of Madukolu vs. Nkemdilim (1962) 1 All NLR page 587; Alao vs. Akano (1988) 1 NWLR Part 71 page 431 at 440 – 441 paragraphs F – A and Ogbogu vs. Ugwuegbu (2003) 10 NWLR Part 827 page 189 at 210 – 211 paragraphs C – C and contended that the parties in the earlier suit are different and the issue was about the proprietary or otherwise of the letters of request while the present suit is complaining about the conduct, that is, the grant of the request which was released on the 16th February, 2005. He submitted that the real cause of action arises when the request was granted. Learned Counsel referred to the 1st and 2nd Respondents, claims, the grounds and reliefs sought by the 1st and 2nd Respondents that they are claiming for the enforcement of their fundamental rights in that, the Appellants were about to take over their assets without them going through the due process of the law by way of trial. He explained that the 1st and 2nd Respondents are suing for the protection of their personal rights and interest in their property which the Appellants had concluded plans on how to spend it. He contended that the parties and the issues in the two different suits are not the same. He stressed that the argument of the Appellants’ Counsel in this sphere is totally misconceived. It was further stated that as at the time the previous suit cited by the Appellants’ Counsel as constituting res judicata was instituted, the need to apply for leave for the enforcement of their rights to the property has not arisen. It was only in 2005 that the Federal Office of Justice Switzerland granted the request sought and the Appellants were about to collect the funds belonging to the Respondents outside the due process to determine whether or not the funds were stolen funds. He urged this Court to resolve issue No. 2 in favour of the 1st and 2nd Respondents.

With regard to issue No. 3, learned Counsel referred to the cases of Tukur vs. Government of Gongola State (supra) and submitted that the lower court was right. He argued that the 1st Appellant is not a limited liability company and does not reside in FCT alone or where its registered office is located but it resides in every State of the Federation based on section 2(2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). He explained that the Respondents are not seeking for any order or declaration in respect of the action of another sovereign; rather they are seeking for declaration and injunction against the Appellants and the 3rd Respondent. It was further explained that it is a way of preventing the 1st Appellant from taking benefit of its conduct which is rooted in the violation of its citizens’ rights. He made reference to the cases of Owena Bank Plc vs. Olatunji (supra); Madukolu vs. Nkemdilim (1962) 2 SCNLR 341; Inah vs. Ukoi (2002) 9 NWLR Part 773 563; Chief Emmanuel Eze Onwuka vs. Engr. Samuel Ononuju (2009) 11 NWLR Part 1151 page 174 at 214 para B; Ajayi vs. Military Administrator Ondo State (1997) 5 NWLR Part 504 page 237 at 259, A – B; R.T.C. vs. F. o. B. Investment Ltd (2001) 6 NWLR Part 708 page 246 at 262; FBN Plc vs. Abraham (2003) 2 NWLR Part 803; Bhojwani vs. Bhojwani (1996) 6 NWLR Part 457 page 661 at 666; U.B.A. vs. Coker (1996) 4 NWLR Part 441 page 239 at 250 -253; A.S.T.C. vs. Quorum Consortium Ltd (2004) 1 NWLR Part 855 page 601 at 622 – 623, H – D; Alh. Ali Abacha vs. Attorney General of the Federation; Mercury Aviation Services Ltd vs. Attorney General of the Federation; Kenon vs. Tekam (2001) 14 NWLR 732 page 12 at 42; P.D.P vs. K.S.I.E.C (2005) 15 NWLR Part 948 230 at 250, D – G and Basrsoum vs. Clenessy Int. (1999) 12 NWLR Part 632 page 516, and their previous cases in suit Nos. FHC/KD/CS/28/2004 and FHC/KD/CV/131/2003 and submitted that it is the Plaintiffs’ claim that determines the jurisdiction of the Court and not what the defendant thinks or assumes. He referred to the trial court’s remarks at page 419 of the record and submitted that the issue of fore-knowledge of the case does not apply in the circumstances of this case since there is no allegation against the lower Court bordering on financial impropriety or bias. It was contended whether a Judge must wash his hands off a case merely because one of the parties perceives that he will not obtain justice from his Court. He persuaded this Court to resolve this issue in favour of the 1st and 2nd Respondents.

On the fourth issue, learned Counsel submitted that the contention of the Appellants that, no cause of action has been disclosed should not be countenanced in that, the 1st and 2nd Respondents, claims were supported by credible evidence which the trial Court considered. He submitted that the trial court was right and the allegations of bias and res judicata were unsubstantiated. He then urged this Court to dismiss this appeal and order accelerated hearing in the matter.

I have deeply considered the issues phrased and rephrased by the Appellants and 1st and 2nd Respondents respectively in this appeal via their respective Counsel, and I think it more appropriate to dwell on the ones propositioned by the Appellants.

Now considering issue No. 1 formulated by the Appellants; that is to say, whether the suit is not statute barred by virtue of section 2(a) of the Public Officers Protection Act, having been commenced more than three months after the letter of request for mutual assistance were written, it is, therefore, imperative to examine the Originating Motion filed by the Respondents in the substantive suit to ascertain when the cause of action arose.

As I stated earlier, the facts of the case before the lower Court are that the 1st Respondent i.e., the 1st Appellant in this appeal forwarded an application for reciprocal cooperation to the Federal Government of Switzerland on the 20th December, 1999. It was attached as Exhibit 1. To the affidavit in support of the said Originating Motion.

It is shown by Exhibits 2 and 2A that further requests were made by the 1st Appellant through it legal representative, i.e., Mr. Enrico Monfrini via the documents dated 2nd October, 2003 and 28th May, 2004 shown at pages 61 and 104 respectively of the record of this appeal. Then, the Respondents via Exhibits 3 and 4 dated the 10th May, 2004 and 17th June, 2004 respectively presented their contentions to the Swiss Federal Office of Justice, which is equivalent to the 1st Appellant’s Federal Ministry of Justice.

Then, on the 18th August, 2004 via Exhibit 5 displayed at pages 157 – 220, the Federal Government of Switzerland considered the letters dated 30th September, 1999 containing the announcement of application for mutual judicial assistance, and, the 20th December, 1999 being the formal application made for mutual judicial assistance by the 1st Appellant through its said legal representative. The said Swiss Federal Office of Justice rendered its judgment on the said application after considering the assertions of both sides via Exhibit 5 dated the 18th August, 2004 by granting the same.

Then, pursuant to the said judgment of 18/8/2004, the Swiss Federal Office of Justice issued a press release dated the 16th February, 2005, by which the Government of the Federal Republic of Switzerland undertook to hand over the sum of USD458 Million out of USD508 Million of the 1st and 2nd Respondents’ assets. A copy of the Release was attached as Exhibit 6 to the 1st and 2nd Respondents’ affidavit in support of their Originating Motion.

At page 214, Exhibit 5 reads inter alia:

“The Federal Office of Justice grants the application for mutual assistance from the Federal Republic of Nigeria dated 20th December, 1999 and the additional request for mutual assistance dated 21st May, 2000 and orders the handing over to the Federal Republic of Nigeria, via its account at the Bank of International Settlements in Basle, the assets seized by the FOJ on 2nd January, 2004 merely.”

It is explicit in relief No. 1 sought by the 1st and 2nd Respondents that they are praying the lower court, a Nigerian court to declared the said grant made or judgment delivered by the Federal Office of Justice of the Federal Republic of Switzerland on the 18th August, 2004 approving the transfer to the 1st Appellant, the 1st and 2nd Respondents’ cash assets in their companies namely, Sulgrave Holdings Inc, Blue Rock Properties, Barven Holdings, Olmar Establishment, Peltora Establishment, Tadil Overseas Inc, Peltora Establishment, Olmar Establishment and Blue Rock Properties SA, Newland Overseas Ltd, Genesis Holdings Ltd, Mercury Aviation Services Ltd and Vectra Commodities Ltd and other entities such as SUEZE, LEZNED, TUMEGO, SUNG, TEXLE and MORRIS, unconstitutional, null and void and contrary to the African and united Nations charter on Human Rights.

Relief No. 1 is self explanatory, it was the judgment or the decision granting the application made by the Federal Office of Justice of the Federal Republic of Switzerland, that the 1st and 2nd Respondents are seeking the lower Court to declare unconstitutional, null and void.

It is imperative to appreciate at the outset that the Federal Office of Justice of the Federal Republic of Switzerland which the 1st and 2nd Respondents are praying that its decision taken or judgment delivered in accordance with the set down Laws of Switzerland, is not a party to the suit before the lower Court, a Nigerian Court. It is follows therefore, that it is the Federal Government of Nigeria that is being sued by the Respondents herein for the decision taken by the Government of Switzerland via its Federal Office of Justice within its sovereign territory in Switzerland which enjoys State immunity.

According to experts on State immunity, the doctrine and rules of state immunity concern the protection which a state is given from being sued in the courts of other states. The rules relate to legal proceedings in the courts of another state, not in a state’s own courts. It was stated that the rules developed at a time when it was thought to be an infringement of a state’s sovereignty to bring proceedings against it or its officials in a foreign country. Further it has been stated that; there is now a trend in various states towards substantial exceptions to the rule of immunity; in particular, a state can be sued when the dispute arises from a commercial transaction entered into by a state or some other non-sovereign activity of a state. The United Nations Convention on Jurisdictional Immunities of States and their Property, which is not yet in force, formulates the rules and the exceptions to them. It does not cover criminal proceedings, and it does not allow civil actions for human rights abuses against state agents where the abuse has occurred in another country. See Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening) Judgment, I.C.J. Reports 2012 page 99 judgment delivered, (Feb – 3, 2012) which was a case concerning the extent of state immunity before the International Court of Justice.

The case was brought by Germany after various decisions by Italian courts to ignore the state immunity of Germany when confronted with claims against Germany by victims of Nazi-era war crimes. The court found that Italy was wrong to ignore German immunity, and found that Italy was obligated to render the decisions of its courts against Germany without effect.

The underlying claims were based on a number of war crimes committed by German troops during World War II. The substance of the facts were not disputed by Germany. A number of international agreements and measures had been passed which purported to waive the claims of the victims involved, or make reparations.

First, the court rejected a theory of “territorial tort,” in which Italy would be entitled to ignore immunity because torts were committed on Italian territory. The court analyzed this exception within the narrow confines of the facts of the case: here the torts were committed by an armed force during armed hostilities. The court noted that while the general territorial tort certainty has support forjure gestionus, or commercial activities of state, it is clear that such a tort is not meant to apply to armed forces engaged in an armed conflict. The court cited the European Convention on State Immunity, the United Nations Convention on Jurisdictional Immunities of States and Their Property, and the state practice of a number of countries to establish that there was little support for extending the territorial tort as far as Italy proposed.

Second, the court rejected a more expansive exception to state immunity, under which immunity would be lost if serious human rights violations were alleged and no reparations were forthcoming. Italy advanced three “strands” to this argument: first, Italy argued that the gravity of the violations required elimination of state immunity; second, that to not eliminate state immunity would effectively derogate from a peremptory, or jus cogens norm; and third, that immunity was lost because the claimants had no other means of redress. Italy also argued that these three strands, if not each independently is sufficient to warrant a loss of immunity, and were sufficient when combined together.

Addressing the first strand, the court noted that allowing a judicial enquiry into the gravity of the crime would defeat the purpose of immunity, which is to avoid the trial process. Additionally, that there is little support in international conventions and state practice to support the idea that severity of the crime could eliminate state immunity. The court distinguished the Pinochet’s case-in which Augusto Pinochet was arrested despite immunity as a head of state-by pointing out that Pinochet’s was a criminal case against an individual, not a civil case against a state itself.

Addressing the second strand, the court distinguished between procedural and substantive rules and found that there was no conflict between substantive jus ogens prohibitions on enslavement, for instance, and procedural state immunity. The court noted that this was consistent with the ICJ’s rulings in Armed Activities in the Congo and Arrest Warrant of 11 April 2000, in which jus cogens rules did not confer jurisdiction or abrogate immunities of officials. The court further noted that no state practice supported the argument that jus cogens rules displace immunity.

Addressing the third strand, the Court distinguished between immunity and the substantive rules of international law, under which Germany might still owe reparations. A finding of immunity does not equal a finding that Germany did not owe reparations. The Court pointed out that, under this theory the existence of immunity would depend on the final failure of a diplomatic solution, but that this failure would be exceptionally difficult to identify.

Finally, having rejected the strands of Italy’ argument individually, the court rejected their aggregate as well, specifying that immunity could not be based on a substantive balancing test applied by national courts. After finding that Italy was obliged to grant Germany immunity before Italian courts, the Court found that the petition for Greek judgment (application for exequatur) was subject to the same rules and should likewise have been denied due to immunity.

By a vote of 14 to 1, the court found that Italy was obliged, by a means of its own choosing, to render void the decisions of its courts infringing the state immunity due to Germany.

It is quite distinct in the Germany vs. Italy (supra) case that the 1st and 2nd Respondents have no competence whatsoever to claim an action in Nigerian Courts against the said judgment of the Federal Office of Justice of Switzerland.

The 1st and 2nd Respondents in their affidavit in support of the Originating Motion for enforcement of their fundamental rights clearly averred at paragraph 4(v) that the decision of the Swiss Federal Office of Justice was administrative in nature. Then, at sub paragraphs (vi) and (vii) of paragraph 4, the Respondents distinctly averred thus:

“vi. That there is in Swiss procedure for international mutual assistance for any person(s) aggrieved by the decision of the Federal Office of Justice, Berne, Switzerland referred to above to make further representations by way of review albeit administrative to the Federal Supreme Court.

vii. That the Supreme Court dismissed the representation made by the applicant.”

By every indication, the Respondents had explored the processes entrenched by the Swiss Government for review or appealing against the decisions made by its Federal Office of Justice, Switzerland over International Mutual Assistance applications. The 1st and 2nd Respondents made the representations to the Federal Supreme Court of Switzerland for review but the same was dismissed by the said Swiss Federal Supreme Court.

It is, therefore, mind-boggling that the 1st and 2nd Respondents, after exhausting the avenues for the review of the said judgment delivered or the grant made by the Swiss Federal Office and failed, came back to Nigeria to sue the Federal Government of Nigeria in respect of the said judgment delivered or grant made by the Federal Office of Justice of Switzerland. The question is, how could the Appellants and the 3rd Respondent have been sued for the decision or action of another Sovereign State performed within the confines of the Laws governing the sovereign territory of that country? As far as the 1st and 2nd Respondents’ relief No. 1 is concerned, they have no right of relief against the Appellants and the 3rd Respondent in Nigeria in respect of the same, therefore, no cause of action accrued in favour of the 1st and 2nd Respondents against the Appellants and the 3rd Respondent in respect thereof.

Nevertheless, suppose the 1st and 2nd Respondents based their relief No. 1 against the Appellants and the 3rd Respondent on hypothesis, the fact is, the said decision granting the application filed by the Government of Nigeria was taken by the Swiss Government on the 18th August, 2004. The question is, is the action statute barred?

The relevant section on the issue of statute of limitation, is the Public Officers Protection Act, i.e., section 2(a) which provides:

“2. Where any action, prosecution or other proceedings is commenced against any person for any act done in pursuance or execution or intended execution of any law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such law, duty or authority, the following provisions shall have effect:

(a) The action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in the case of a continuance of damage or injury within three months next after the ceasing thereof.”

As I pinpointed earlier, the act of granting the 1st Appellant’s applications for mutual assistance made by the Federal Office of Justice of Federal Republic of Switzerland was on the 18th August, 2004. The clear picture painted in this appeal is that the 1st and 2nd Respondents woke up from their slumbers in March, 2005 to sue the Federal Government of Nigeria for the judgment of the Federal Office of Justice, Switzerland. This is ridiculous. It should be recognized that the merit of relief No. 1 is not being considered herein, but, whether the relief as it were, is statute-barred. Therefore, if, at all, the 1st and 2nd Respondents had any right under any law in Nigeria or under any International Treaty signed by Nigeria which, I believe, exists only in the wishful thinking or bizarre imagination of the 1st and 2nd Respondents, to institute an action over the administrative acts of another sovereign State in a Nigerian Court, that right according to the manifestation of the first relief, accrued on the 18th August, 2004, meaning that the 1st and 2nd Respondents’ imagined rights to sue the Appellants and the 3rd Respondent in respect of that judgment or grant accrued on the said 18th August, 2004. By section 2(a) of the Public Officers protection Act, the 1st and 2nd Respondents had three months from the said 18th August, 2004 to initiate the action. It seems by computation of time, the three months would have elapsed on 16/10/2004, therefore, for whether it worths, reliefs No. 1 is statute-barred. Unfortunately, there is no hypothesis in law. It is either the right of the 1st and 2nd Respondents to sue the Appellants and the 3rd Respondent in Nigeria over the actions of a foreign Country in its own territory exists or it does not. As I observed earlier, the 1st and 2nd Respondents have no right of action against the Appellant and the 3rd Respondent in respect of relief No. 1.

As for reliefs (ii) – (v), the 1st and 2nd Respondents at paragraph 4 sub-paragraph (xi) of the affidavit in support of their Originating Motion asserted that the press release made by the Federal Office of Justice of Federal Republic of Switzerland as to how their cash assets will be handed over to the 1st Appellant was on the 16th February, 2005. The 1st and 2nd Respondents’ action under the Fundamental Rights (Enforcement Procedure) Rules was commenced on the 15th March, 2005. The Appellants did not counter the fact so as to prove when the cause of action accrued in respect thereof. In absence of any other fact to the contrary, I hereby partly resolve issue No. 1 in so far as reliefs (ii) – (v) are concerned in favour of the Respondents.

The second issue is whether the Applicants were not estopped by the doctrine of res judicata and issue estoppel from prosecuting the suit.

The term res judicata means “a matter already adjudged. It refers to a case in which there has been a final judgment and is no longer subject to appeal. The essence of the doctrine is to bar or preclude continued litigation of such cases between the same parties.

It is said that res judicata is not only a method of preventing injustice to the parties of a case supposedly finished, but perhaps mostly to avoid unnecessary waste of resources in the Court system. It does not merely prevent further judgments from contradicting earlier ones, but also litigants from multiplying judgments, so a prevailing plaintiff cannot recover damages from the same defendant twice for the same injury.

According to Black’s Law Dictionary 9th Edition, res judicata is an affirmative defence barring the same parties from litigating a second law suit on the same claim or any other claim arising from the same transaction or series of transactions that could have been, but was not raised in the first suit.

The three essential elements of the doctrine are:

(1) an earlier decision on the issue;

(2) a final judgment on the merits, and

(3) the involvement of the same parties, or parties in privity with the original parties. See Adeyemi-Bero vs. Lagos State Development and Property Corporation & anor (2013) 8 NWLR Part 1356 page 238 where it is stated that in order to sanction a plea of res-judicata the party who is pleading it must meet the following conditions:

“(1) The parties (or their privies as the case may be) are the same in the present case as in the previous case;

(2) That the issue and subject matter are the same in the previous suit as in the present suit;

(3) That the adjudication in the previous case must have been given by a court of competent jurisdiction; and

(4) That the previous decision must have finally decided the issues between the parties.”

In the instant case, the Appellants are contending that the parties and the issues in the previous suit No. FHC/ABJ/CS/374/2003 are the same as the parties and the issues in the suit giving rise to this appeal filed at the lower Court in suit No. FHC/KAD/CD/18/2005 before the Federal High Court sitting in Kaduna.

A certified true copy of the ruling in suit No. FHC/ABJ/CS/347/2003 filed before the Abuja Division of the Federal High Court presided over by S.J. Adah; J, (as he then was) is contained at pages 256 – 266 of the record of this appeal. The reliefs sought therein were reproduced verbatim in the said ruling at pages 256 – 257, thus:

“1. A declaration that the 1st and 2nd Defendants have no right or power to issue letter of request for assistance or to make requests for assistance which have determined or have the effect or purpose to have the effect of determining the rights of the Plaintiffs.

2. A declaration that the 1st and 2nd Defendants had no right or power to issue the Swiss Letter, the Luxemburg Letter, the Liechtenstein Letter nor to make any request for assistance to the Secretary of the State for Home Affairs, United Kingdom and the Attorney General of Jessey or any other 3rd party similar or in the manner of the disclosed letters or requests.

3. A declaration that the Swiss letter, the Luxembourg letter, the Liechtenstein letter, such other letter of requests for assistant not disclosed to the Plaintiffs, and any requests for assistance to the Secretary of State for Home Affairs, United Kingdom and the Attorney General of Jersey are unconstitutional, null and void of no effect.

4. An order setting aside the Swiss Letter, the Luxembourg letter, the Liechtenstein letter, such other letters of request for assistance not disclosed to the Plaintiffs, and any requests for assistance to the Secretary of State for Home Affairs, United Kingdom and the Attorney General of Jersey.

5. An order or mandatory injunction restraining the defendants, particularly the 1st and 2nd defendants acting through their servants and agents from relying on any advantage served from the said letters of request afordescribed and any steps taken thereon to the benefit of the said defendants in so far as it inures from the said letter of request are void.

6. A mandatory order directing the defendants to withdraw the afore-described letters or request.

7. An order of perpetual injunction restraining the defendants jointly and severally whether acting by themselves their agents or agents, from proceeding, continuing, causing to be continued, or assisting in anyway whatsoever with the Swiss Letter, the Luxembourg letter, the Liechtenstein letter any requests for assistance to the Secretary of Swiss for Home Affairs, United Kingdom and the Attorney General of Jersey except in accordance with the due process and protection permitted by law.

8. An order of perpetual injunction restraining the defendants jointly and severally whether acting by themselves their servants or agents, from making any further requests for assistance, which contain false and/or misleading and/or inaccurate statements.”

The parties therein were as follows:

“1. SULGRAVE HOLDINGS INC

2. RAW MATERIAT DEVELOPMENT & TRADING CO LTD

3. TECHNICAL MANAGEMENT SERVICES LTD

4. ALLIED NETWORK LTD

5. BLUE ROCK PROPERTIES

6. BARVEN HOLDINGS

7. OLMAR ESTABLISHMENT

8. PELTORA ESTABLISHMENT

9. GLOTAR ESTABLISHMENT

10. KRH CAPITAL ESTABLISHMENT

11. KURITA ESTABLISHMENT

12. TADIL OVERSEAS

13. RIKE LIMITED

14. WARNBECK HOLDINGS

15. ARWOOD OVERSEAS

16. LARBRIDGE TRADING

17. VENFORD INVESTMENTS

18. SAVARD INTERNATIONAL

19. MOHAMMED SANI ABACHA

20. JUININ FINANCE

AND

1. The Federal Government of Nigeria

2. The Attorney General of the Federation and Minister of Justice

3. The Inspector General of Police

4. The National Security Adviser.”

It was contended by the Appellants’ Counsel that the 1st and 2nd Respondents herein are the same as the Plaintiffs in FHC/ABJ/CS/347/2003.

As portrayed by the Appellants’ Learned Counsel, the 1st Respondent herein was the 19th Plaintiff in the aforementioned suit. Even though the 2nd Respondent was not a party to the said aforementioned suit, paragraphs (viii), (ix) and (x) of the affidavit in support of their Originating Motion at the lower Court, clearly depicted him as having substantial interests in the companies enumerated therein. It is also clear that in the aforementioned suit, the Federal Government of Nigeria and its Federal employees or Public office holders or agents were sued as parties. In the present suit before the lower Court, the Federal Republic of Nigeria that is the same as the Federal Government of Nigeria, and, its Federal Attorney General and Accountant General of the Federation and two of its Federal Agencies were sued as the Respondents. It is my profound view that the 1st and 2nd Respondents having maintained they have substantial interests in the companies mentioned in Exhibits 2 and 2A attached to the affidavit in support of their Originating Motion, are the same as those companies equally fisted in suit No. FHC/ABJ/CS/347/2003. I rely on the case of Dr. Sebastine Okechukwu Mezu vs. Cooperative Bank (Nigeria) Plc. (2011) 3 NWLR Part 1340 page 188; where the Supreme Court, per Peter-Odili, J.S.C., held that the Appellant, the Chief Executive Officer of Mezu International Limited, the Plaintiff in suit No. HOW.210/88, who is also the alter ego, the face and body of the Company was properly stopped from pursuing the suit and appeal, and that the argument that the parties and subject matter are not the same and are different was erroneous.

Now coming to the point raised about issue estoppel, I must observe that the present suit is not questioning the power of the 1st Appellant to issue letter of request for assistance or to issue the Swiss letter, the Luxembourg letter, etc, or challenging its power to make any requests for assistance to the secretary of the state for Home Affairs, United Kingdom and Attorney General of Jersey, etc. All the issues raised in the aforementioned suit No. FHC/ABJ/CS/347/2003 had to do with the issue of applying for or issuing letter of request for assistance to countries not connected with the Federal Republic of Switzerland.

I must remark that the issues in the present suit are post-mortem application or request for mutual assistance. The stage in the present suit had surpassed that in the aforementioned suit. In the present suit, the 1st and 2nd Respondents are attacking the Appellants particularly the 1st Appellant’s right to accept the proceeds consisting of frozen and repatriated funds from Swiss accounts of the companies described in relief No. 1 in the said suit. Also, they are asking the lower Court for an order directing the Appellants to where to keep the funds, etc. I am, therefore, convinced beyond doubt that issues in the present case and those of the aforementioned suit are not the same. The requirement is that the ingredients of the parties, the issues and the subject matter must be the same for the doctrine to be invoked. They must be present in the two suits. I am afraid, due to the differences in the issues, I find no basis in resolving this question in favour of the Appellants.

The third issue is whether the lower Court has jurisdiction to entertain the matter. The law has been well settled that it is the nature of the claim placed before the Court that determines whether that Court has jurisdiction over the subject matter or not. See Adeyemi & Ors vs. Opeyori (1976) 10 SC 31 at p.51; Tukur vs. Governor of Gongola State (1989) 4 NWLR Part 117 p.517. The Appellants’ Counsel reiterated part of his argument under issue one regarding whether the lower Court can extend or exercise its jurisdiction over any foreign sovereign. I think I had succinctly dealt with that aspect of the Appellant’s Counsel’s argument under issue No. 1. As I pointed out the Federal Republic of Switzerland is not even a party to the suit that generated this appeal. The troubled territory ventured by the 1st and 2nd Respondents is seeking relief against the said judgment of the Federal Office of Justice of Swiss Government, that is to say, seeking for a declaration that the said judgment or order granting the application for mutual assistance by the said Federal Office of Justice of the Federal Republic of Switzerland is unconstitutional null and void and contrary to the African and United Nations Charter on Human Rights. It is indisputable as I expatiated upon under issue No. 1, that the lower Court has no jurisdiction whatsoever to entertain such relief over the decision of the Government of Switzerland against the Nigerian Government. See Jurisdictional Immunities of the State (Germany vs. Italy Greece Intervening), judgment, I.C.J. Reports 2012 page 99 judgment delivered, (Feb – 3, 2012).

The second limb of the Appellant’s contention touches on the territorial jurisdiction of the Kaduna Division of the Federal High Court whether it can entertain an action against the Federal Government of Nigeria that has its seat of power in Abuja.

It should be recognized that the suit before the Lower Court was instituted under the Fundamental Rights (Enforcement Procedure) Rules. It was not commenced by way of Writ of Summons. It is therefore, necessary to observe in passing as was stated by the Supreme Court in Amale vs. Sokoto Local Government & Ors. (2012) that a trial court will only have jurisdiction to proceed to enforce a fundamental right of an applicant guaranteed under Chapter IV of the Constitution if the main relief discloses a breach of the fundamental right of the applicant. It is instructive to note that the substantive reliefs sought by the 1st and 2nd Respondents in their suit at the lower Court don’t seem to have connection with enforcement of fundamental rights.

Be that as it may, it is imperative to note the provisions of Section 46 of the Constitution of Federal Republic of Nigerian 1999 (as amended). The section says:

“46(1) Any person who alleged that any of the provisions of this Chapter has been, is being or is likely to be contravened in any State in relation, to him may apply to a High Court in that state for redress.”

It is clear by the above provision that it is the High Court in the State where the person felt his fundamental rights were being threatened, or to be breached or had been or are likely to be breached that the person can apply to, for enforcement of those rights.

I think the provision has been sufficiently explicated by the Supreme Court in Adetona vs. Igele General Enterprises Ltd (2011) 7 NWLR Part 1247 page 535, per Muhammed, J.S.C., thus.:

“Where a person’s fundamental right is breached, being breached or about to be breached, that person may apply under section 46(1) to the judicial division of the Federal High Court in the state or High Court of the state or that of the Federal Capital Territory in which the breach occurred or is occurring or about to occur. This is irrespective of whether the right involved comes within the legislative competence of the Federation, State or The Federal Capital Territory.” (Underlining mine)

The fundamental principle in the judgment quoted above is that the State High Court, or High Court of Federal Capital Territory or the Judicial Division of the Federal High Court must be in the State in which the breach occurred or is occurring or about to occur. As rightly argued by the Appellants Counsel, the Federal Capital Territory is where the seat of the Government of the Federation is. It operates from Abuja and it has most of its functionaries and the headquarters of all its Federal Ministries situated therein. It is unchallengeable that Abuja is where the seat of the 1st Appellant is. The question is, where else would the Federal Government have received or accepted the said funds when they are eventually released by the Government of Switzerland? Certainly, it is not in Kaduna. It is common knowledge that the decision making or taking of the Federal Government of Nigeria is being carried out in Abuja where it resides or its seat of power is; therefore, the decision to accept the funds is, without iota of doubt to be taken in Abuja. The 1st and 2nd Respondents mentioned the escrow account of the 1st Appellant. One therefore, needs to ascertain where the 1st Appellant’s escrow account is maintained? Is it in Kaduna or Abuja and in which Bank? Is it Central Bank of Nigeria? Where is its Headquarters?

Another salient question is, if the 1st Appellant eventually received the money would it distribute the same from Kaduna? It is clear from reliefs (ii) to (v) that every activity the 1st Appellant might be involved in regarding the receiving and distribution of the said funds would definitely take place in Abuja, its seat of power where the President of the Country and all the Ministers and Parastatals are, and, function, not in Kaduna. I must admit I do not find the argument of the 1st and 2nd Respondents’ Counsel plausible in this respect.

Interestingly, Order 2 Rule 2 of the Federal High Court Rules provides that all actions for recovery of revenue, penalties and forfeitures, and also all actions against Public Officers shall be commenced and tried in the Judicial Division of the Court in which the cause of action arose. As rightly submitted by the Appellants’ Counsel, the term ‘Public Officer’ had been defined to include persons known to law, inclusive of artificial persons, public bodies, or body of persons, corporate or incorporate as well as statutory bodies or persons, whether sued by their official titles or not, so long as they are sued in respect of act or acts done in pursuance or execution of any law or of any public duty or activity. See Ibrahim vs. J.S.C. (1998) 14 NWLR Part 584 p.1, per Iguh, J.S.C.; Sani vs. President FRN (2010) 8 NWLR Part 1198 p.153, and A.G. Federation vs. Abacha (2010) 17 NWLR Part 1221 page 1, per Okoro, J.C.A. (as he then was). By the definition given in Ibrahim vs. J.S.C. (supra), there is no doubt that the Federal Republic of Nigeria when it is being sued by any person, before any Court will be classified and regarded as a ‘Public Officer’, therefore, for it to be sued by any person before the Federal High Court, it must be sued where the cause of action arose. This now brings me to this inextricable question, where did the cause of action giving rise to this action arise?

The term ’cause of action’ has been differently defined. It has been defined as a set of facts sufficient to justify a right to sue to obtain money, property or the enforcement of a right against another party. Black’s Law Dictionary, 9th Edition defines it as a group of operative facts giving rise to one or more bases for suing; a factual situation that entitled one person to obtain a remedy in Court from another person.

Further, in Onuekwusi vs. The Registered Trustees of The Christ Methodist Zion Church (2011) 6 NWLR Part 1243 page 341, the Supreme Court, per Muhammad, J.S.C., stated inter alia thus:

“It is always important for a Court of law to have a very careful examination of the subject matter placed before it in order to find out whether action/suit has the required competence to stand before that Court. And, for an action to be clothed with competence the following criteria must among others, be complied with. They are as follows:

1. Existence of Accrual of a Cause of Action

(a) There must be a cause of action before an intending litigant can seriously think of initiating proceedings in a court. For the purpose of litigation, a cause of action has been comprehensively defined to entail the fact(s) or combination of fact(s) which gives rise to a right to sue and it consists of two elements, the wrongful act of the defendant which gives the Plaintiff his cause of complaint and the consequent damage. It is thus constituted by the aggregate or bundle of facts which the law will recognize as giving the Plaintiff a substantive right to make a claim for remedy or relief against the defendant. See: Fadare & Ors. v. A.G. of Oyo State (1982) 4 SC 1 at pp.6 – 7; Egbe vs. Adefarasin (No.1) (1985) 5 SC 50 at P.87; (1985) 1 NWLR Part 3 P.549; Alese vs. Aladetuyi (1995) 7 SCNJ 40 at p.50; (1995) 6 NWLR Part 403 527; Savage vs. Uwaechia (1972) 1 NLR Part 1 251 at p.257; Egbue vs. Araka (1988) 3 NWLR Part 84 598; Adesokun vs. Adegorolu (1997) 3 SCNJ 1 at P.16; (1997) 3 NWLR Part 493 261; Kusada vs. Sokoto N.A. (1968) 1 All NLR 377 at 381; Bello vs. A.G. Oyo State (1986) 5 NWLR Part 45 828 at P.876.

Each of the factual elements making up the cause of action should have come into being before any proceedings are commenced, otherwise the proceedings will be premature and consequentially unsustainable. See: Esin vs. Matzen and Timim Nig. Ltd (1966) 1 All NLR 233: (1966) 2 SCNLR 208; Mohammed vs. U.B.A (1976) 2 FNR 21.

An action can be defeated by limitation of time where its time begins to run from the moment of accrual of cause of action. See: Fadare vs. A.G. Oyo State (supra).

It is trite that in determining the venue for the trial of any matter, it is generally accepted that there must be close examination of the Writ of Summons, the Statement of Claim and Motion papers if any including affidavit evidence and annexures thereto. In the instant case, the 1st and 2nd Respondents seem to be only in apprehension of the likelihood of infringement of their said fundamental rights to fair hearing, before the transfer of assets being accepted by the 1st Appellant from the Swiss Government. It is apparent they were trying to take pre-emptive measures, i.e., to stop the 1st Appellant from accepting the proceeds of the judgment of the Federal Office of Justice or moneys from Swiss Government which said moneys the Swiss Government had investigated and believed or came to the conclusion were illegally acquired and were funds of criminal origin or originated from illegal activities.

It need be emphasized as I earlier highlighted that the decision to transfer the money to the Nigerian Government’s account was taken by the Federal Office of Justice, Federal Department of Justice and Policy in the document entitled “Judgment of the Federal Office of Justice (FOJ)” dated 18th August, 2004. It was at page 49 of the said document annexed as Exhibit 5 to the affidavit of the Respondents in support of their Originating Motion, that an order was made to hand over to the 1st Appellant the cash assets of the 1st and 2nd Respondents various companies seized by the FOJ on 22/1/2004. It is shown at page 219 of the record that the 1st and 2nd Respondents, as I stated earlier, had exhausted all the procedures set in place under the Swiss Laws for the review of the said decision or judgment of the Federal Office of Justice of Switzerland. The 1st and 2nd Respondents had, in essence, appealed against those decisions of the Federal Office of Justice, Switzerland up to the Supreme Court of Switzerland. It is indicated therein that the Federal Supreme Court of Switzerland upheld the decision of the Federal Office of Justice. It is clear from the record that the processes leading to the judgment delivered in the 1st Appellant’s favour by the Federal Office of Justice of Switzerland had begun for such a long time. By the record, what remains now is for the Appellant to reap the fruit of the said Judgment of the Federal Office of Justice dated the 18th August, 2004. The 1st and 2nd Respondents challenged the said judgment and lost before the Federal Supreme Court of Switzerland. It is clear from the assertions of the 1st and 2nd Respondents that as at the time of commencement of the present suit, Nigerian Government had not even received the said cash from the Government of Switzerland. Despite that, the Respondents commenced the action then stating that the 1st Appellant should be restrained from enjoying the fruit of the said Judgment delivered in its favour by the Swiss Federal Office of Justice, and, too, saying that the 1st Appellant would be infringing upon their fundamental rights to fair hearing when, it is glaring on the record that both parties unrestrictively presented the sides of their respective cases through their legal representatives before the Federal Office of Justice, Switzerland. The 1st and 2nd Respondents even stretched it to the Swiss Federal Supreme Court. It is my candid view that since Nigerian Government had not, at the time of filing this action received or accepted the cash assets adjudged by the Federal Office of Justice of Switzerland under the Laws of Switzerland to have been illegally amassed by the late father of the 1st and 2nd Respondents, the issue of the 1st and 2nd Respondents’ fundamental rights guaranteed under section 36 of the 1999 Constitution of the Federal Republic of Nigeria being in imminent danger of being infringed or trampled upon, could not have arisen. The 1st and 2nd Respondents were fully heard via their legal representatives before that judgment was delivered, but they could not prove before the Swiss Authorities and its Federal Supreme Court how they earned the said sum in any genuine or honest way. The Swiss Government as I earlier stated believed the monies were illegally acquired through criminal activities, they then decided to have them transferred to the Government of Nigeria, the adjudged owner of the same. At this junction, it may be necessary to advert attention to my opinion in Hassan vs. EFCC (2014) 1 NWLR Part 1389 page 478 at 630, 632 and 633 that a citizen’s freedom or liberty is not absolute. Whoever, deliberately or intentionally, sets out to contravene our set down Laws (criminal, in particular) or that of another Country should equally be prepared to face the rhythm of our Justice System and that of the foreign country. Seeking refuge under the Fundamental Rights (Enforcement Procedure) Rules in the face of the judgment of the Federal Office of Justice, Switzerland is really baffling.

The question is, where is the cause of action? Since they argued it was anticipatory, has it actually crystallized? Where are the sets of facts upon which they believed that the Federal Republic of Nigeria had wronged them? Where are the wrongful acts of the 1st Appellant which gave them their cause of complaint and the consequent damage? The Federal Government of Nigeria is merely expecting to receive the money based on the decision or judgment made in its favour by the Government of Switzerland and nothing more. It is only the body that made the order and handed down the judgment that can ameliorate the situation herein. Honestly, I find it difficult to appreciate when the cause of action in the suit had arisen. To my mind, no cause of action has actually arisen because both parties diligently fought their respective cases before the Federal office of Justice of Switzerland before that judgment of 18th August, 2004 was delivered in favour of the 1st Appellant. According to the 1st and 2nd Respondents, the cause of action is still at large, looming in the air and can crystallize some day in any state of Nigeria and, possibly, Kaduna.

This was also the view of the trial Court which said that anticipatory, breach cannot be located or limited to any geographical area i.e., State. So if the cause of action is still looming, hanging in the air, waiting to fall into any State possible, how then can the 1st and 2nd Respondents be justified in their argument that they could commence the action against the 1st Appellant in Kaduna? I am afraid this is a blind argument because as opined by Muhammad, J.S.C., in Onuekwusi (supra), each of the factual elements making up the cause of action should have come into being before any proceedings are commenced otherwise the proceedings will be premature and consequently unsustainable. What if tomorrow the money is released and the Federal Government decides to receive it in Lagos or Benin? What then would happen to the pre-emptory or preventive action filed by the 1st and 2nd Respondents in Kaduna? Definitely, it would be trashed. With due respect, this totally exposed the pointlessness in the commencement of the action in suit No. FHC/KAD/CP/18/2005 in Kaduna when the cause of action is anticipatory in nature. It is apparent that the fulfillment of Order 2 Rule 2 of the Federal High Court Rules is a tall order, an uphill task indeed, in so far as this suit is concerned. With due respect, the provisions have not been complied with due to non-ascertainment of the 1st and 2nd Respondents’ cause of action, and, where it actually arose. This equally leads me to agreeing with the submissions of the Appellants’ Learned counsel that no reasonable cause of action has been disclosed in the suit. In Rinco Construction Co. Ltd vs. Veepee Industries Ltd (2005) 9 NWLR Part 929 page 85, the Supreme Court, per Tobi, J.S.C., stated that a reasonable cause of action means a cause of action with some chances of success. For a statement of claim to disclose a reasonable cause of action, it must set out the legal rights of the plaintiff and the obligations of the defendant. It must then go on to set out the facts constituting infraction of the plaintiff’s legal right or failure of the defendant to fulfill his obligation in such a way that if there is no proper defence, the plaintiff will succeed in the relief or remedy he seeks. The word “reasonable” means fair, proper, just, moderate, suitable under the circumstances. The 1st and 2nd Respondents, as I earlier stated, have not shown the accrual of the cause of action. They expressed it was anticipatory in nature. On this basis, issues Nos. three and four are hereby resolved in favour of the Appellants. Accordingly, this appeal is hereby allowed. The decision of the lower court is hereby set aside. The Preliminary Objection of the Appellant is hereby sustained. Consequently, and in line with numerous decisions of the Supreme Court, the proper order to make herein is that of striking out the Originating Motion filed by the 1st and 2nd Respondents at the lower court against the Appellants and the 3rd Respondent. The same is hereby struck out for lack of jurisdiction and failure to disclose a cause of action.

ITA G. MBABA, J.C.A.: I have had the privilege of reading the draft of the lead judgment just delivered by her Lordship, T.N. ORJI-ABADUA, JCA, and I think she has succinctly discussed and resolved all the pertinent issues arising for consideration in the appeal. I agree with her reasoning and conclusions.

I only have to comment on the origination of the suit as a fundamental rights matter, to express my worry at the audacity of the 1st and 2nd Respondents and their brazen spirit in fighting against the recovery of ill-gotten property from the estate of their father, after a competent foreign Court (outside the shores of Nigeria) had adjudged the property to have been fraudulently acquired by their father and that the same belong to Federal Republic of Nigeria, after full hearing of the case, wherein the 1st and 2nd Respondents were fully represented and heard, even up to appeal level by the foreign Court!

Instituting the case resulting in this appeal in the guise of a fundamental rights action appears to be a new dangerous dimension to the misuse of fundamental rights application. It is akin to a thief challenging the State in court for confiscating stolen property recovered from him. The 1st and 2nd Respondents were seeking declarations which tend to question the jurisdiction and the decisions of the foreign court which handed down the judgment. It appears as a ploy to get the Federal High Court in Nigeria to sit on appeal to review the decisions of the Federal Supreme Court of Switzerland, which confirmed the earlier decision of the Federal Office of Justice of Switzerland!

A close look at the reliefs sought by the 1st and 2nd Respondents at the Federal High Court tells it all, as they had sought:

“(i) A declaration that the grant by the Federal Office of Justice of the Federal Republic of Switzerland of the applications for mutual assistance dated the 20th of December 1999 and 21st May 2000 leading to the decision to repatriate to the defendants the cash assets of the following companies, to wit, Sulgrave Holding Inc, Braven Holding Inc, Tradil Oversea’s Inc, Peltora Establishment, Olmar Establishment and Blue Rock Properties SA, Newland Overseas Ltd, Genesis Holdings Ltd, Mercury Aviation Services Ltd and Vectra Commodities Ltd and other entities such as SUEZE, LEZNED, TUMEGO, SUNG, TEXLE and MORRIS who maintained assets in named Swiss Banks in respect of which the applicants had controlling interests, is in the absence of a valid criminal trial of judgment in civil proceedings by a court of competent jurisdiction unconstitutional, null and void and contrary to the African and United Nations Charter on Human Rights.

The grounds for seeking the above reliefs, show that the 1st and 2nd Respondents were aggrieved by the decision of the Courts in Switzerland and were, in fact, seeking a review of that decision. The grounds were:

4. In resolving such unwholesome situations, such as demonstrated above, this Honourable Court is empowered to preserve the subject matter of the entire dispute – to wit – the funds in issue and to keep them until such a time that all parties would have conformed and complied with the fundamental rules laid down by domestic and international legislations concerning criminal trials.”

Of course, the decisions which the 1st and 2nd Respondents fought against were founded on the Laws and Procedures of Federal Government of Switzerland, a jurisdiction which the Respondents submitted to, having elected to do financial business/transaction in the territory, under the laws of that Jurisdiction. Having also defended the case, fully, in Switzerland, but unsuccessfully, it would be legal naivety to think or expect a High Court in Nigeria to sit on appeal over the said decision of the Supreme Court in Switzerland, which was founded on their laws, and legal principles, as opposed to those in Nigeria, not applicable at the time the decisions were reached in Switzerland!

To allow that would, in my opinion, lead to chaos in international jurisprudence, and result in serious conflicts in international law, and will discount from the sanctity with which Court decisions are held. I believe the learned trial judge was right in declining jurisdiction, as that court did not have any in the case.

As earlier stated in this contribution, to sustain a fundamental rights action fundamental right claim must be the main and principal claim in any action fought under the Fundamental Rights (Enforcement Procedure) Rules and not ancillary issue. See the case of TUKUR VS. GOVERNMENT TARABA STATE [1997] 6 NWLR [PT. 510] 549; GAFAR VS. GOVERNMENT OF KWARA STATE [2007] 4 NWLR [PT. 1024] 375; WEST AFRICAN EXAMINATION COUNCIL VS. AKINKUMINI [2008].

With this and fuller reasons in the lead judgment, I too allow the appeal and abide by the consequential orders in the lead judgment.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading the lead judgment delivered by my learned brother, Theresa Ngolika Orji-Abadua, JCA. His Lordship has ably considered and resolved the issues in contention in this appeal. I agree with the reasoning and abide the conclusions. I only wish to comment on some of the issues raised in the appeal.

This is an appeal against the decision of Honorable Justice A. M. Liman of the Federal High Court sitting in Kaduna contained in a Ruling delivered on the 21st of October, 2005 overruling a notice of preliminary objection of the Appellants. One of the issues formulated for determination in this appeal was whether the lower Court had jurisdiction to entertain this suit. It is trite that the concept of jurisdiction is very wide and has many variants. One of the variants of the concept of jurisdiction argued in the appeal was – whether or not Honorable Justice A. M. Liman, who presided over the matter in the lower Court, ought not to have declined jurisdiction on the ground of bias. It was the contention of the Appellant that the learned trial Judge had in the past decided two similar matters on the same issues and between the same parties in Suit No FHC/KD/CS/20/2004 – Alhaji Ali Abacha Vs Attorney General of the Federation and Suit No FHC/KD/CS/131/2003 – Mercury Aviation Services Ltd Vs Attorney General of the Federation and he thus had foreknowledge of the facts of the present case and would be biased in favour of his previous decisions. This issue was raised in the notice of preliminary objection argued before the lower Court and the learned trial Judge dealt with the issue in his Ruling thus:

“The last ground of objection is whether the previous decisions including the Ruling and Judgment I delivered in other cases, which according to counsel are related to the present case, does not accord me with the foreknowledge of the facts of the matter in this case as to render me incompetent to hear and determine the case on the ground of likelihood of bias….”

I have examined the facts and circumstances of the cases of Ali Abacha Vs AGF and a careful comparison of the reliefs sought will show that, though the central theme in the three cases is the issue of request and freezing of the account of the applicants, it is however, clear that several issue of claims and reliefs in the case raise distinct cause of action calling for determination of different and separate issues of law and fact. The case of Ali Abacha Vs AGF sought to invalidate the request for mutual assistance in freezing the account of the applicants and others in various countries of the world and the judgment dealt with the matter in which certain of the reliefs which included the determination of the validity of the Banking (Freezing of Accounts) Act Cap 29 Laws of Federation and the legality of such request for mutual assistance in the absence of a domestic law enabling Nigeria to seek for assistance from any country other than the Commonwealth over which mutual assistance treaty incorporated Nigeria Domestic Law … The court also dealt with the issue of Public Officers Protection Act, which it held that the government was not protected by the Public Officers Protection Act because the law under which it had acted did not exist.

In the case of Mercury Aviation Services Ltd Vs Federal Government of Nigeria, the plaintiff sought for declaratory relief concerning validity of a contract, which they claimed they performed and were paid only for the defendant to trace the money and freeze it. The matter was not concluded. The only issues decided were issues raised in the defendant’s preliminary objection, namely, Public Officers Protection Act, absence of reasonable cause of action in favour of the plaintiff on some ground and dismissed on grounds.

Now this case, in my view, does not essentially resurrect the issues decided in the two cases, for, it seems, the funds have already been forfeited under the Law of Switzerland, but the issue before the court is whether under the domestic laws of Nigeria, the government can proceed to appropriate this (sic) funds without following the due Process of the law?

Learned Counsel for the 1st – 4th Respondents believes that I have foreknowledge of the fact and the law, but with due respect, I do not think I have had the prior opportunity of determining these very peculiar question of law or fact in the previous decision. The competence of a claim is not based on the defence raised by the defendant but on the very nature of the claim as couched in the writ of summons and the statement of claim, and in this particular case in the statement of relief and ground of the application and the affidavit in support of the application.” (see pages 418 to 419 of the records)

The learned trial Judge refused to decline jurisdiction and he dismissed the ground of preliminary objection.

It must, however, be understood that to charge a court with bias or likelihood of bias, there must be cogent and reasonable evidence to satisfy the court that, there was in fact such bias or real likelihood of bias as alleged. It is squarely a grave matter and the accuser must be ready and able to establish the facts and grounds he relies upon before he can succeed in his complaint – Ojengbede Vs Esan (2001) 18 NWLR (Pt.746) 771. Allegations of bias cannot be founded on mere conjectures but on concrete and real evidence. Although justice in law must not only be done but seen to be manifestly done, bias cannot be proved by sheer and vague suspicion and scandalous allegation against a court – Osayomi Vs State (2007) 1 NWLR (Pt 1015) 352.

In the instant case, the Respondents sought the following reliefs:

(i) A declaration that the grant of the Federal Office of Justice of the Federal Republic of Switzerland of the applications for mutual assistance dated the 20th of December, 1999 and 21st May, 2000 leading to the decision to repatriate to the defendants the cash assets of the following companies to wit Sulgrave Holding Inc, Braven Holding Inc, Tradil Overseas Inc, Peltora Establishment, Olmar Establishment and Blue Rock Properties SA, Newland Overseas Ltd, Genesis Holdings Ltd, Mercury Aviation Services Ltd and Vectra Commodities Ltd and other entities such as Sueze, Lezned, Tumego, Sung, Texle and Morris who maintained assets in named Swiss Banks in respect of which the Applicants had controlling interests, is in the absence of a valid criminal trial and judgment in civil proceedings by a court of competent jurisdiction unconstitutional, null and void and contrary to the African and United Nations Charter on Human Rights.

(ii) A declaration that in the absence of due process guaranteed under section 36 of the Constitution of the Federal Republic of Nigeria and under the African and United Nations Charter on Human Rights, the Defendants cannot accept the proceeds consisting of frozen and repatriated funds from the Swiss accounts of the companies described above, all being subject matter of the application for mutual cooperation between Nigeria and Switzerland and in respect of which the Applicants has (sic) controlling interest or Pay those funds into the Federation Account as the consequence will be the distribution and dissipation of those funds without ascertainment of their origin, which the applicants claim ownership of and without due process of law in the recovery of monies suspected to be of criminal origin and alleged to belong to the 1st Defendant.

(iii) An order directing the 3rd, 4th and 5th Defendants to keep the funds described above and received from the Swiss Authorities in an escrow account, untouched and not distributed between the respective Governments of the Federal Republic of Nigeria or expended by the latter in any manner whatsoever unless and until confiscatory orders have been granted by a court of competent jurisdiction and by due judicial process or if cleared by Nigerian courts of any criminal conduct as to the said funds, release forthwith these funds to the Applicants.

(iv) An injunction restraining the Defendants from distributing all the funds received from the Federal Government of Switzerland, based as they were on unproved criminality of the source of these funds, which have been taken from accounts held by companies in respect of which the Applicants have controlling interest, alternatively restraining the Defendants from placing them in the Federation Account in the absence of due process of law as recognized by the Constitution of the Federal Republic of Nigeria 1999.

(v) An interim order in the terms of prayer (iv) – to wit restraining or staying the respondents from distributing or dealing with in any manner (other than its preservation in an escrow account) funds described about to be reviewed or received from the Federal Government of Switzerland pending the determination of this application.

Two of the grounds upon which the Respondents predicated the prayers sought were:

(a) The steps taken by the Federal Government of Switzerland purportedly in acceding to the request of the 1st Defendant leading to the confiscation and transfer of the Applicants funds to the 2nd – 5th Defendants is unjustifiable and an affront to the rule of law in that no court of law, domestic or foreign has found the Applicants liable in crime in respect of part or whole funds described herein.

(b) The absence of any conviction or other form of endorsement of criminal liability either in Nigeria or Switzerland or any other part of the world renders any confiscatory action particularly that described in this application null and void as seizure without trial violates the Bill of Rights as contained in the Nigerian Constitution, African Union Charter and the United Nations Human Rights Charter.

The judgment of the learned trial Judge in Suit No FHC/KD/CS/20/2004 – Alhaji Ali Abacha Vs Attorney General of the Federation is on pages 305 to 335 of the records of appeal and the questions submitted for determination in the suit were:

(i) Whether the Defendant under the Laws in force in Federal Republic of Nigeria had powers as at 27th day of September 1999 to delegate to Maitre Enrico Monfrini & Bottege Associates – Switzerland to freeze the account of any person particularly the Plaintiff.

(ii) Whether the Defendant under the Laws in force in the Federal Republic of Nigeria as at 23rd of December, 1999 had the power to seek to freeze the accounts of any Person particularly the Plaintiff without sanction of a Court of Law.

(iii) Whether the Defendant can seek mutual assistance from any person, Government or Authority (particularly the Governments of United Kingdom, Switzerland, Liechtenstein, Luxembourg and Jersey) or any foreign countries of the world on the basis of the delegation of powers purportedly made to it by the President and Commander in Chief of the Armed Forces of the Federal Republic of Nigeria on 23rd December, 1999.

(iv) Whether the Defendant can claim any right of access to the Plaintiffs’ foreign account and/or seek the assistance of any foreign country or authority to have access to the Plaintiff’s foreign accounts without the Plaintiff having been convicted of a criminal offence in Nigeria.

(v) Whether the Defendant purporting to act under the Banking Freezing of Accounts Act of 31st December, 1983 (retired as Cap 29 Laws of the Federation 1990) can validly seek to freeze the accounts of the Plaintiff either in Nigeria or elsewhere in the world without granting the Plaintiff a hearing as contemplated under section 36 of the 1999 Constitution of Nigeria in such determination of the Plaintiff s right.

(vi) Whether the Defendant acting upon a non-existing law can validly seek to freeze or seek collaboration of foreign governments (particularly United Kingdom, Switzerland, Liechtenstein, Luxembourg and jersey) to freeze the accounts of the Plaintiff.

(vii) Whether the Defendant purporting to act on the powers of the President and Commander in Chief of the Armed Forces of the Federal Republic of Nigeria under the Banking (Freezing of Accounts) Act Cap 29 Laws of the Federation 1990 can validly request a transfer of funds from the Plaintiff’s accounts maintained in the United Kingdom, Switzerland, Liechtenstein and Luxembourg sometime in October 2003, when the Plaintiff had not been convicted of any criminal offence under the Laws in force in the Federal Republic of Nigeria.

(viii) Whether the Defendant can validly delegate the power purportedly delegated to him by the President of the Federal Republic of Nigeria to a third party i.e. Maitre Enrico Monfrini of Monfrini & Associate in Switzerland.

Reading the claims of the Respondents in the instant case and the two grounds reproduced above upon which they were predicated, it is obvious that the complaint of the Respondents is against the Appellants taking custody of the funds in foreign accounts of the mentioned companies in Switzerland without the Respondents of the companies having been first convicted of a criminal offence and necessary confiscatory orders made and without the Appellants showing that the funds were proceeds of a criminal offence and without the Respondents and the companies having been given a fur hearing. This much was alluded to by the learned trial Judge in his Ruling when he said:

“Now this case, in my view, does not essentially resurrect the issues decided in the two cases, for, it seems, the funds have already been forfeited under the Law of Switzerland, but the issue before the court is whether under the domestic laws of Nigeria, the government can proceed to appropriate this (sic) funds without following the due process of the law.”

These complaints are the same as the questions (iv), (v) and (vii) submitted to the same learned trial Judge for adjudication by the plaintiff in Suit No FHC/KD/CS/20/2004 – Alhaji Ali Abacha Vs Attorney General of the Federation. In his judgment delivered on the 24th of September, 2004, the learned trial Judge answered the said the questions (iv), (v) and (vii) in favour of the plaintiff and he concluded the judgment by saying thus:

“As an epilogue to this judgment, I must observe that the effect of this judgment on the effort of the Federal Government to retrieve alleged looted or misappropriated funds laundered abroad is far reaching. It must however be pointed out that at the constitutional level, the right of the citizen to the due process and the duty of the government to observe it, and of the court on the other hand to enforce its observance are co-extensive.

Its observance is to secure the basic freedoms of the citizen enshrined in our constitution which guarantees the right to personal liberty and fair hearing. The court will continue to uphold this constitutional imperative no matter how highly unpopular these decisions will be. They will represent the greatest test of our democratic will and our readiness to play our roles based on our constitutional obligations.”

The question is – in these circumstances, can it be said that the learned trial Judge will come to the dispute in the instant case with an openness of mind that would enable him to hold an even scale. Will the learned trial Judge not be biased in favour of his previous decision in Suit No FHC/KD/CS/20/2004 – Alhaji Ali Abacha Vs Attorney General of the Federation?

The law is that in ascertaining whether or not a court or tribunal is or would be biased in the adjudication of a matter, the court does not look at the mind of the presiding Judge or Chairman of the tribunal or whoever may be sitting there in a judicial capacity. It does not look to see if there was a real likelihood that the Judge would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if the presiding officer acting in a judicial capacity is as impartial as can be, nevertheless, if right-minded persons would think that, in the circumstances, there is a real likelihood of bias on his part, then he would not sit over the case. If he sits, his decision cannot stand. The court reviewing the case will not inquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think that he did. This is because justice is rooted in confidence and confidence is destroyed when right minded people go away thinking that the Judge was biased – Kenon Vs Tekam supra, Usani Vs Duke supra.

It must, however, be pointed out that the test of real likelihood of bias will not be extended beyond what is based on the reasonable apprehensions of a reasonable man fully apprised of the facts and circumstances of a matter. The standard of capricious and unreasonable people should not be allowed to determine and control the legal aphorism that justice must not only be done but must be manifestly seen to be done otherwise judicial or quasi-judicial functions would be almost impossible to perform – The Secretary, Iwo Local Government Vs Adio (2000) 8 NWLR (Pt 667) 115, Osayomi Vs State (2007) 1 NWLR (Pt 1015) 352.

Applying the test of the right-minded person, a reasonable man, fully apprised of the facts and circumstances of this matter, it is my considered view that such a person will have reasonable apprehensions of a likelihood of bias on the part of the learned trial Judge in favour of his previous decision in Suit No FHC/KD/CS/20/2004 – Alhaji Ali Abacha Vs Attorney General of the Federation. This is particularly more so as the two cases arose from similar set of facts and occurrences. The learned trial Judge thus ought not to have overruled the ground of preliminary objection and he should have declined jurisdiction to entertain the present suit.

Another issue that was raised and argued was whether the present action as constituted in the processes filed before the lower Court did not amount to an abuse of process. The issue was raised and argued in Appellants’ brief of arguments under the fourth issue for determination headed “Whether the suit disclosed a reasonable cause of action.” The arguments were not objected to by the Counsel to the Respondents and the Respondents also argued the fourth issue for determination in their brief of arguments. Counsel to the Appellants stated that the Respondents contested the proceedings in Switzerland against the first and second Appellants and the Government of Switzerland up to the Supreme Court of that country and lost and that the first and second Appellants showed in the proceedings that the funds in the accounts of the mentioned companies were of criminal origin. Counsel stated that in view of this, the present action amounted to an abuse of process. Counsel to the Respondents did not directly respond to these arguments in their arguments of the fourth issue for determination.

Now, abuse of process is a concept; it is an idea or a general notion formed by generalization from particular examples. It is a concept that is imprecise. It involves circumstances and situations of infinite variety and conditions. In Messrs NV Scheep & anor Vs The MV ‘S Araz’ & anor (2000) 15 NWLR (Pt 691) 622 at page 664 Karibi-Whyte JSC said of the concept thus:

“The legal concept of the abuse of the judicial process or the abuse of the procedure of the court is very wide. The scope and content of the circumstances of the material facts and conduct, which will result in such abuse, are infinite in variety. It does not appear that the category can be closed. New unforeseen conduct from the stratagem of the plaintiffs can give rise to the abuse. An abuse may be constituted through a proper and legitimate conduct in bringing actions even in the exercise of an established right in the manner or time of instituting actions. It may be constituted by irregularities in the pursuit of actions.”

The concept of abuse of process has been dealt with in a myriad of cases in our courts. A common feature of all the cases on abuse of process is that the concept is the improper use of the judicial process by a party in litigation to interfere with the efficient and effective administration of justice to the irritation and annoyance of his opponent. An abuse of process does not lie in the right to use a judicial process but rather in the manner of the exercise of the right. It consists of the intention, purpose or aim of the person exercising the right to harass, irritate and annoy the adversary, and interfere with the administration of justice; it is the inconveniences and inequities in the aims and purposes of the action – Saraki Vs Kotoye (1992) 9 NWLR (Pt 264) 156, Ogoejeofo Vs Ogoejeofo (2006) 3 NWLR (Pt 966) 205, Ali Vs Albishir (2008) 3 NWLR (Pt 1073) 94, Igbeke vs Okadigbo (2013) 12 NWLR (Pt 1368) 225. The courts have held that attempting to re-litigate a cause of action of an issue raised in a cause of action that has already determined by a court of competent jurisdiction is a specie of the concept of abuse of process – Usman Vs Baba (2005) 5 NWLR (Pt.917) 113, Offor Vs Leaders & Co Ltd (2007) 7 NWLR (Pt 1032) 1, Jimoh Vs Akande (2009) 5 NWLR (Pt 1135) 549, Yusuf vs Ajaokuta Steel Co. Ltd (2010) 2 NWLR (Pt 1177) 167.

In the affidavit in support of the originating summons filed by the Respondents before the lower Court, they stated that they were aware of the representations made by the first and second Appellants to the Federal Government of Switzerland through one Maitre Enrico Monfrini in support of the request for mutual cooperation and assistance in the recovery of the funds contained in the accounts of the companies, mentioned in the body of the originating summons, and that they responded and made their own representations through their counselor, De Pfeyffer and Associates, to contest the request. It was their case that the Swiss Federal Office of Justice considered and reviewed the representations made by all the parties and rendered an administrative decision on the 18th of August, 2004, and, obviously, their own representations were rejected. It was their case that they contested the decision of the Federal Office of Justice in the Supreme Court of Switzerland which upheld the decision of the Federal Office of Justice and dismissed their representations.

The decision of the Federal Office of Justice was attached as an exhibit to the processes filed by the Respondents and it is on pages 157 to 218 of the records of appeal. The Federal office of Justice found that the funds in the accounts of the said companies were of criminal origin and it made an order forfeiting the funds and it held that the funds could be returned to Nigeria without the first and second Appellants having to first obtain a confiscation order. The decision of the Federal Office of Justice on these points was affirmed by the Supreme Court of Switzerland and this is evident from the second, paragraph of the release issued by the Federal Office of Justice which read thus:

“In its decision of restitution of 18 August 2004, the FOJ stated that the majority of the Abacha assets frozen in Switzerland were evidently of criminal origin and thus ordered them returned to Nigeria. In its decision of 7 February, 2005, the Federal Supreme Court also concluded that the greater part of these assets worth some USD458 Million was clearly the proceeds of crime and could therefore be returned to Nigeria without the latter having to issue a confiscation order. This course of action permits the assets in question to be returned quickly to the country to which they are owned and is also progressive in an international con. Switzerland will be the first country in which Abacha funds were deposited to return these assets to Nigeria on the basis of an official decision.”

The release was also attached as an exhibit to the processes filed by the Respondents and it is on pages 219-220 of the records. A read through the decision of the Federal Office of Justice shows that part of the representations made by the Respondents in those proceedings were that the funds could not be forfeited and returned to Nigeria without the Respondents or the companies having been first convicted of a criminal offence and necessary confiscatory orders made and without the Appellants showing that the funds were proceeds of a criminal offence. These are the very same complaints being made by the Respondents in the present proceedings against the receipt of the funds by the Appellants. The Federal Office of Justice and the Supreme Court of Switzerland made specific findings on the representations and held that the funds were shown to be proceeds of crime and that they could be returned without the Appellants having first obtained a confiscation order.

It is correct that part of the case of the Respondents in the affidavit in support of the originating summons was that the entire concept of mutual legal assistance as carried out by the Federal Government of Switzerland and the first and second Appellants, in the circumstances of this case, fell short and was repugnant to the Human Rights Charter of Nigeria, of the African Union and of the United Nations and they referred to a legal opinion on Swiss legal system that they allege says that the Swiss Government was in error in transferring the funds in question on the ground that they were of criminal origin without a proper trial or due process. It was on these assertions that they predicated the first claim on the originating summons praying for a declaration that the grant of the request for mutual legal assistance as granted by the Swiss Federal of Justice in the circumstances of this case was unconstitutional, null and void and contrary to the African and United Nations Charter on Human Rights.

Unfortunately for the Respondents, the Federal High Court before whom the action was filed had no jurisdiction to entertain this first claim. This is because by the provisions of by the section 251(1) of the 1999 Constitution of the Federal Republic of Nigeria, which donated its jurisdiction, the Federal High Court is not a court of general jurisdiction, but one of limited and enumerated jurisdiction and as such for the Federal High Court to have jurisdiction over a matter, the subject matter of action must fit into one of the enumerated areas of its jurisdiction specified in paragraphs (a) to (r) of the section – Oladipo Vs Nigerian Customs Service Board (2009) 12 NWLR (Pt 1156) 563, Anao Vs Sun Publishing Ltd (2013) 3 NWLR (Pt 341) 399, Merill Guaranty Savings & Loans Ltd Vs WorldGate Building Society Ltd (2013) 1 NWLR (Pt 1336) 581, Ahmed Vs Ahmed (2013) 15 NWLR (Pt.1377) 274. The jurisdiction to declare the actions of agencies of foreign National governments unconstitutional, null and void is not one of the enumerated powers granted to the Federal High Court by the Constitution.

Additionally, what the Respondents desired the lower Court to do by their first claim on the originating summons is to examine the merits of the decisions of the Swiss Federal Office of Justice as affirmed by the Supreme Court of Switzerland and ascertain whether there was an error of raw committed by the two adjudicating bodies in the decisions. It is settled law that, even assuming that the Federal High Court had jurisdiction to entertain the claim, the Court had no power to examine the decisions of the adjudicating bodies to determine whether an error was committed or not. This is because a judgment of a foreign court of competent jurisdiction which is final and conclusive on the merits is conclusive between the parties and privies as to any issue upon which it adjudicates and it is not impeachable or examinable on the merits whether of fact or of law by a domestic court – Merker vs Merker (1962) 3 All ER 928, In re: The Sennar (1985) 2 All ER 104, House of Spring Gardens Ltd Vs Waite (1990) 2 All ER 990 and Black vs Yates (1991) 4 All ER 722. The only exception is where the judgment of the foreign court was obtained by fraud or where the proceedings in the foreign court were conducted in breach of the rules of natural justice.

It was not the case of the Respondents that they were not granted a fair hearing either by the Federal Office of Justice of by the Supreme Court of Switzerland before the decisions to forfeit the funds and release them to the first and second Appellants were reached neither was it their case that neither the Federal Office of Justice nor the Supreme Court of Switzerland was competent to arbitrate on the issues or that the decisions were obtained by fraud and/or that the decision of the Supreme Court of Switzerland was not a final decision. This suit is a clearly an attempt to re-litigate questions that have been distinctly raised and determined in final decisions by two competent Courts. It is an abuse of court process.

Another issue that was agitated by the parties in this appeal was whether the processes filed by the Respondents disclosed a reasonable cause of action. The phrase “cause of action” means simply a factual situation the existence of which entitles one person to obtain a remedy against another person. It is a fact or combination of facts which when proved would entitle a plaintiff to a remedy against a defendant. It consists of every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment of the court. It consists of two elements, namely: (i) the wrongful act of the defendant which gives the claimant his cause of complaint; and (ii) the consequent damage – Sanda Vs Kukawa Local Government (1995) 2 NWLR (Pt 174) 379, Dantata Vs Mohammed (2000) 7 NWLR (Pt 664) 176, Charles Vs Governor of Ondo State (2013) 2 NWLR (Pt 1338) 294, Uwazuruonye Vs Governor, Imo State (2013) 8 NWLR (Pt 1355) 28, Yarc Vs National Salaries, Wages and Income Commission (2013) 12 NWLR (Pt 1367) 173. A cause of action is constituted by either a single fact or a combination of facts averred by a plaintiff in his pleadings which the law will recognize as giving him a right to make a claim against a defendant for a remedy or relief in court. The factual situation disclosed by the facts in the plaintiffs pleadings on which he relies to support the claim made must be recognized as giving him the right capable of being claimed against the defendant – Egbe Vs Adefarasin (No 2) (1987) 1 NWLR (Pt 47) 1, Seagull Oil Ltd Vs Moni Pulo Ltd (2011) 15 NWLR (Pt 1271) 525.

A reasonable cause of action is a cause of action which, when only the facts in the statement of claim are considered, has some chance of success. In determining whether a reasonable cause of action is disclosed in a suit, all the facts in the statement of claim are deemed admitted, where pleadings are filed, and the court confines itself to examining only the facts averred in the statement of claim to see whether those facts standing alone discloses a cause of action that has a chance of success. The court does not scrutinize or examine documents of affidavit evidence whether from the defendant or the plaintiff for the purpose of ascertaining whether a reasonable cause of action is disclosed in a suit – Fumudoh Vs Aboro (1991) 9 NWLR (Pt 214) 210, Dantata Vs Mohammed supra, Ohaji Vs Unamka (2011) 4 NWLR (Pt 1236) 148, Ikenne Local Government Vs West African Portland Cement Plc (2011) 12 NWLR (Pt 1261) 223, Seagull Oil Ltd Vs Moni Pulo Ltd supra, Charles Vs Governor of Ondo State supra, Uwazuruonye Vs Governor, Imo State supra, Yare Vs National Salaries, Wages and Income Commission supra.

Now, the Respondents commenced this action under the Fundamental Rights (Enforcement Procedure) Rules. It is settled that where an application is made under the Fundamental Right (Enforcement Procedure) Rules, a condition precedent to the exercise of the court’s jurisdiction is that the enforcement of fundamental rights or the securing of enforcement thereof should be the main claim and not the accessory claim. Where the main or principal claim is not the enforcement of a fundamental right, the jurisdiction of the court cannot be properly exercised under the Fundamental Right (Enforcement Procedure) Rules – Tukur Vs Government of Taraba State (1997) 6 NWLR (Pt 510) 549, Gafar Vs Government of Kwara State (2007) 4 NWLR (Pt 1024) 375. The Rules are specifically restricted only to actions on contravention of the provisions of Chapter IV of the Constitution. It is only actions founded on a breach of fundamental rights guaranteed in the Constitution of the Federal Republic of Nigeria can be enforced under the Fundamental Rights (Enforcement Procedure Rules) 1979 and where an applicant under the Fundamental Rights (Enforcement Procedure Rules) is unable to pigeon hole his complaint within any of the guaranteed fundamental rights, the jurisdiction of the court cannot be said to be properly invoked and the action is liable to be struck out on the ground of incompetence – West African Examination Council Vs Akinkunmi (2008) 9 NWLR (Pt 1091) 151 and West African Examination Council Vs Adeyanju (2008) 9 NWLR (Pt 1092) 270.

Thus, the issue of whether the Respondents disclosed a reasonable cause of action, must be looked at and resolved within the terms of the peculiar procedure used to commence the action and the relevant question is whether, from facts disclosed on the processes filed, the Respondents made out a plausible case of the infringement of their fundamental rights as guaranteed under the Constitution.

From the facts deposed on the affidavit in support of the application for enforcement of fundamental rights, the case of the Respondents is that the issue of mutual cooperation and assistance in the recovery of the funds in the names of the mentioned companies in foreign accounts in Switzerland had been contested between the Respondents, the first and second Appellants and the Federal Government of Switze4and in the Swiss Foreign Office of Justice and a decision had been reached to return the funds to Nigeria and that this decision was affirmed by the Supreme Court of Switze4and. It was their case that following the decision of the Supreme Court of Switzerland, a release was issued by the Foreign Office of Justice stating that on the strength of the decisions, funds in the accounts of the mentioned companies totaling the sum of USD 458 Million would be released to Nigeria. It is against the collection of these funds by Nigeria that the Respondents commenced the proceedings in the lower Court alleging breach of their fundamental rights.

It is incumbent on a party alleging the infringement of his fundamental rights to specify which of the specific right guaranteed to him under the Constitution has been or is being or is likely to be infringed.

The only section of the Constitution referred to by the Respondents in their entire processes was section 36 thereof. The section deals with the right to fair-hearing and section 36(1) reads:

“In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality”

It is clear from this provision and other provisions in section 36 of the Constitution that the issue of right to fair hearing arises only where the act being carried out involves the determination of the civil rights and obligations of a person. Where the act being carried out does not involves the determination of the civil rights and obligations of a person, but is an executive or legislative act or a mere administrative act, the question of acting in accordance with the rules of fair hearing does not arise. Hence, the Court have held than an order of certiorari cannot lie against such acts – Magit Vs University of Agriculture, Makurdi (2005) 19 NWLR (Pt 959) 211, Manuwa Vs National Judicial Council (2013) 2 NWLR (Pt 1337) 1, State Vs Lawal (2013) 7 NWLR (Pt 1354) 565, Judicial Service Commission of Cross River State Vs Young (2013) 11 NWLR (Pt 1364) 1.

It is obvious, in the instant case, that the act of the Appellants in receiving funds from the Federal Government of Switzerland, basically in execution of an order of Court contained in a judgment that finally determined the rights of the Appellants and the Respondents to those funds, after an even contest, is clearly an administrative act, and has nothing to do with a determination of the rights and obligations of the Respondents. Those rights have already been finally determined. The act cannot thus be said to amount to an infringement of the rights of the Respondents to fair hearing. The action of the Respondents before the lower Court as brought under the Fundamental Rights (Enforcement Procedure) Rules cannot be said to disclose any reasonable cause of action.

It is for these reasons, and the fuller expositions contained in the lead judgment, that I too find merit in this appeal. I allow the appeal and set aside the decision of Honorable Justice A. M. Liman of the Federal High Court sitting in Kaduna in Suit No FHC/KD/CP/18/2005 contained in the Ruling delivered on the 21st of October, 2005. I abide the consequential orders in the lead judgment.

Appearances

D.C. Enwelum Esq, with

S. A. Haruna Esq and Mohammed Mohammed Esq.For Appellant

AND

Mrs B. Y. Dangana with Miss E. Yalwa Esq. for the 1st and 2nd Respondents

Nnamonso Ekanem Esq, with Godwin Udondiah Esq and

Miss Gloria Ibrahim (Miss) for the 3rd RespondentFor Respondent