By Kenya Confidential Finance Editor and The Globe, September 25, 2016
The case filed by Nnaka had delayed the return of the Abacha loot but the recent judgement dismissing the case should make things move faster
A suit filed by a Nigerian lawyer, Godson Nnaka, seeking to stop the repatriation of $550 million loot which was stolen during the regime of late General Sani Abacha has been dismissed by a US Court.
Nnaka was requesting that $320 million from the Abacha loot be paid to him. The judge also ruled out Nnaka for the payment since he had not won any judgment for Nigeria.
John D. Bates, a United States district court judge, last week, dismissed Nnaka’s claim and insisted that he was not a party to the forfeiture case filed by the US Department of Justice in conjunction with Nigeria.
Nigeria’s federal attorney general has filed a country request to the court asking it to dismiss Nnaka’s claims and also bar him from filing similar motions in any other court.
Justice Bates said that Nnaka did not meet the basic prerequisites to be considered as a proper party in the case and to be paid the amount he requested for as he was not qualified to represent Nigeria.
“Neither Nnaka nor his purported clients are parties to the forfeiture matter and neither of them can win judgment through this litigation,” the judge said in his ruling on September 18, 2016.
“The conclusion dooms Nnaka’s motion for charging lien. At common law, the charging of lien is applicable to a judgment or decree obtained for a client by an attorney. Until a judgment or decree has been obtained, the right to impose a lien does not arise.
“Even the most basic prerequisites for charging lien are missing here: Nnaka has not won a judgment for Nigeria; indeed, he had not successfully entered appearance on Nigeria’s behalf. A charging lien in the amount of $320 million is not called for. Nnaka’s claim against Nigeria must be pursued in another case: 16cv-1400.
“Unless and until Nnaka’s claim to the defendant’s assets are reinstated by the DC Circuit, Nnaka’s participation in this case must now come to an end,” the U.S judge ruled, paving the way for Nigeria to draw down its huge cash.
In his response, the minister of Justice, Abubakar Malami said Nnaka was merely trying to delay the return of the Abacha loot by the U.S by making a claim that Nigeria must pay him 40 percent of the loot. Although Nnaka was recruited by Mr. Olujimi, the former attorney general in 2004, he had not recovered anything, he disclosed.
He stressed that Nigeria will not pay Nnaka the $320 million he is asking for since he is not qualified to practise law in the Maryland area where the case is taking place.
The court also ruled that the lawyer could not claim to be representing Nigeria as the temporary letter given to him by Olujimi was not revalidated by Mohammed Adoke during the Goodluck Jonathan administration when the forfeiture case resumed in 2013.
Malami said that the case filed by Nnaka had delayed the return of the Abacha loot but the recent judgement dismissing the case should make things move faster.
“We trust that this Order denying Nnaka’s frivolous claim to the Abacha assets, will help to allay the fear of the Nigerian general public arising from an online medium’s article which stated that Nigeria stands to lose $320 million on account of Nnaka’s Motion,” Malami is quoted as saying.
“We also hope that this Order will help to correct the many falsehoods and half-truths published in the past against the Office of the Honourable Attorney General of the Federation regarding this matter. “This is a positive development for Nigeria.”
We also hope that this Order will help to correct the many falsehoods and half-truths published in the past against the Office of the Honourable Attorney General of the Federation regarding this matter.
“This is a positive development for Nigeria,” the attorney general said.
Federal High Court Rules that Seizure of Fayose’s Assets Legitimate
Justice Nnamdi Dimgba of the Federal High Court, Abuja held yesterday that the temporary order of attachment granted in relation to some identified assets of Ekiti State Governor Ayo Fayose did not violate Section 308 of the constitution.
The judge said the intention of the immunity clause granted to some public office holders is not to shield them from investigation by security agencies for the purpose of obtaining evidence for future uses.
Justice Dimgba gave the ruling yesterday on an application by Fayose, whose lawyer Mike Ozekhome (SAN), had sought to vacate the order of interim attachment granted by the court on July 20 to the Economic and Financial Crimes Commission (EFCC).
The order was in relation to the EFCC’s investigation of some activities of the governor and some of his associates.
The affected property to which the order relate, include four sets of four-bedroom apartments at Chalets 3, 4, 6 and 9, Plot 100, Tiaminu Savage, Victoria Island, Lagos.
Also affected are at 44 Osun Crescent, Maitama, Abuja and Plot 1504 Yedzeram Street, Maitama Abuja.
The EFCC had, while seeking the order, stated in an affidavit accompanying its motion ex-parte that the properties were acquired through proceeds of fraud, which Fayose allegedly got through kickbacks from contractors and other alleged fraud.
It stated that the funds used for the purchase of the properties were said to be drawn from the sum of N1, 219,490,000, which was said to be part of the N4, 745,000,000, allegedly stolen from the treasury of the Federal Government through the Office of the National Security Adviser.
In his application filed on notice on July 21, Ozekhome hinged his request for the court to set aside the order of interim forfeiture on 10 grounds.
He argued that the court lacked jurisdiction to entertain and/or proceed to grant the interim order.
Ozekhome contended that in view of the immunity enjoyed by Fayose as sitting governor by virtue of the provision of Section 308 of the Constitution, he (Fayose) “cannot be proceeded against in a court of law”.
Justice Dimgba upheld the argument of EFCC lawyer Andrew Akoja, to the effect that the July 20 order was validly made.
“It is my considered opinion that the order of court, made on July 20, 2016 in respect of some property of the applicant, and within the limited scope and duration within which it was obtained, was duly procured and does not offend the provision of the Constitution referred to,” the judge said.
Justice Dimgba said although Section 308 of the Constitution serves to protect governors of states from the distraction of litigation and legal proceedings, to enable them to attend to official responsibilities, it should not be interpreted in such a way as to defeat the fight against corruption, to mean that the EFCC or other investigating agencies cannot take a peep into the assets or personal accounts of a serving governor in the execution of a strictly worded and mutually supervised interim attachment orders for the purposes of obtaining evidence for use in future when the immunity has lapsed.
“In the light of the above, I hold that the applicant is not entitle to the reliefs sought and are hereby refused.
“However, in the interest of justice and not to appear to make a mockery or nonsense of the immunity clause, I hold that the interim attachment order of July 20, 2016, granted by this court in favour of the respondent (EFCC) shall last for 45 days as the court had already ordered, within which the respondents must conclude their investigation in respect of those property, at the end of which every encumbrance on the property arising from the order of court, must abate.
“I order that in the event that the respondent may wish to renew the interim attachment order as they are entitled to, they must serve the motion to that effect on the applicant not later than five days to the expiration of that order, without which the order shall stand abated,” Justice Dimgba said.