The Supreme Court on Friday ordered the retrial of Mohammed Abacha, son of the late Head of State, Gen. Sani Abacha.
He had sought to stop the Federal Government from trying him for allegedly receiving and concealing stolen funds.
The apex court ordered him to return to a Federal Capital Territory High Court, where the charges against him were filed.
The Federal Government had filed criminal charges containing 123 counts against Mohammed after stolen funds were traced to the family of the late military dictator.
The charges filed against Mohammed bordered on conspiracy, receiving and concealing stolen property – in breach of provisions of the Penal Code.
However, even before taking his plea, Mohammed filed an appeal to challenge the Federal Government’s decision to try him.
The Court of Appeal dismissed the appeal, after which he headed for the Supreme Court.
He argued that, according to the guidelines set out for the forfeiture of assets in Decree 53 of 1999, it would be unlawful to prosecute him, since the stolen money had been returned to the coffers of the Federal Government.
Section 5 of Decree 53 of 1999 prevented the prosecution of persons accused of stealing public funds, who had forfeited the said stolen funds to the government.
Decree 53 of 1999 was promulgated by the regime of General Abdulsalam Abubakar, and in compliance with the provisions of sections 2 and 3 of the law, the late Head of state and his family returned US$625,263,187.19, £75,306,886.93 and N100,000,000.00, while the accused person also returned N250,000,000.00.
The younger Abacha insisted that he had complied with Decree 53, and as a result of the compliance, he had acquired immunity from prosecution in relation to the stolen funds.
He maintained that the charges filed against him before the FCT High Court breached the undertaking or promise stated in section 5 of Decree 53 – that there would be no prosecution as a result of the forfeiture.
However, in a unanimous decision, a panel of justices of the Supreme Court on Friday dismissed the appeal, thereby clearing the way for the Federal Government to try him.
Justice Olukayode Ariwoola held that Mohammed should return to the FCT High Court to take his plea.
One of the arguments advanced by Mohammed in the appeal was that his father enjoyed immunity while in office, but the court held that, if the late Abacha were to be alive today, he would be liable for prosecution, as his immunity expired when he left office.
The apex court held that, in line with Decree 53, once a property has been shown to be corruptly or illegally acquired, its forfeiture to the government was automatic and not subject to the agreement or cooperation of the persons in possession of the said property, and as a result, such forfeiture cannot earn them indemnity against trial.