FEDERAL government of Nigeria has received set
back in its effort to recover public funds allegedly said to have been
siphoned by the former head of state, late General Sani Abacha.
As the Federal High Court sitting in Kaduna on
Friday dismissed application asking it to stay processing on its judgement
which voided the federal government�s decision to freeze all foreign
accounts of the late Abacha pending the determination of the appeal.
Subsequently, the court has also awarded
N50,000 as costs in favour of the Abacha family.
Ruling on the application, justice Abdullahi
liman said that it was well settled that a declaratory judgement cannot be
stayed, being a judgement declaring a relief sought and not creating an
enforcement obligation by way of his mandatory injunction.
He held that, it must be born in mind that the
contest of the order is that the amount requested for transfer in the
custoday of these foreign banks and that there was no contention that if the
defendant /applicant is not allowed to transfer the money to its custoday
the money would either disappear or descipate.
He said, for as long as these proceedings
countinue in the court, the amount would not only remain in the banks but
may probably yield interest and the amount may become due to the defendents
after appeal or after complying with due process as stipulated by in the
judgement of the court.
He held that the case of government of Oyo
state Vs Akinyemi (supra) and the case of Vaswani Vs Savalkini presents the
correct principles of law relating to the ground of which a stay of
procecceding can be granted and all these were fundamental in this case but
the counsel to the application failed to show how the respondent would
justify his allegation about the Abacha illegal organisation, using the
judgement to perpetrate their illegal and fraudaulent activities.
He held that the defendants needed to establish
a good ground to enable the court exercise it descration to grant stay as
the application has failed and accordingly dismissed.
In the notice of appeal, the federal government
is praying the court of appeal Kaduna division to dismiss the entire
judgement of the federal high court on the ground that the subject matter of
the litigation was statute barrel among other things.
An 11 point grounds of appeal listed by the
federal government includes that the learned trial judgement erred in law
when he did not dismiss the suit for being statute barrel by virtue of the
provision of the public officers protection act, the action not hearing been
brought within three months of the date of the alleged wrongful conduct of
the federal government that the learned trial judge was in grave error when
he held that the decision of the supreme court in Offoboche Vs Ogoja local
government council was to the effect that the law has now turned a full
circle and it is well established that the plaintiff can establish malice,
absence of good faith or absence of legal justification as powerful and
potent weapons to defeat the defence under section 3 (a) of the public
officers protection act.
It would be recalled that the federal High Court sitting in
Kaduna on September 2004 delivered a judgement restraining the federal
government from vfreezing all foreign accounts of the late general Abacha
family which according to the highcourt is unconstitutional and illegal.
