Lagos lawyer, Mr. Femi Falana (SAN) has explained how the governments of the United States of America, Switzerland and Britain have illegally prevented the repatriation of the remaining Abacha loot to Nigeria from the vaults of banks in western countries.
In an article, Mr. Falana said the promise of the US and Switzerland to the government of President Muhammadu Buhari to facilitate the loot recovery have been met with a breach, which he described as immoral. He noted that former British Prime Minister, Mr. David Cameron, who described Nigeria as “fantastically corrupt” did not accede to President Buhari's request to recover and repatriate Nigeria’s looted wealth from the United Kingdom.
Aside from this, he observed, the US has continued to frustrate the legal proceedings filed by Nigeria in Jersey, United Kingdom, for the recovery and repatriation of the remaining Abacha loot worth $300m.
The government of Switzerland, he also noted, imposed a conditionality for repatriating the sum of $321 million in its custody to Nigeria.
Though the US and Swiss authorities keep telling Nigerians that discussions on the repatriation are in progress, Falana said claims to such discussions were conceived to mislead Nigerians. A scrutiny of the roles of both countries, he contended, indicates that they are frustrating the recovery efforts.
At a conference to mark the International Anti-corruption Day in Abuja on 8 December, Falana said he accused the authorities of the two countries of frustrating the legal proceedings initiated by Nigeria for the recovery and repatriation of the remaining Abacha loot.
Mr. David Young, the Deputy Chief Mission of the United States Embassy in Nigeria, Falana recalled, responded to the accusation by saying: “We have legal processes that we have to go through in order to recover these stolen assets, but we are committed and involved in dialogue with the Nigerian government to move forward in this effort.”
While agreeing that the US is committed to the recovery of the Abacha loot, Falana said it has trenchantly opposed the repatriation of the loot to Nigeria. As evidence of his claim, Falana pointed to the erection of hurdles in the path of Nigeria towards the recovery of $300million Abacha money held by either of Doraville, a company controlled by the Abacha family or associates or the Viscount in Jersey (Channel Island).
The Nigerian government, the lawyer noted, had adopted a variety of strategies to freeze, recover and repatriate monies stolen by the former military ruler, the late General Sani Abacha and his associates.
“In particular, legal proceedings have been filed in many courts, including a criminal complaint in Switzerland, and requests for mutual legal assistance (MLA) to various European nations.
“Others include claims in England (both in the Commercial Court and the Chancery Division) directly against inter alia Mohammed Sani Abacha (“Abacha”) and Abubakar Atiku Bagudu (“Bagudu”), together with companies associated with them, including Doraville Property Corporation (“Doraville”).
“The various English proceedings were settled after both Abacha and Bagudu entered into agreements with Nigeria to bring about the repatriation of the various assets to Nigeria. These assets include the monies held by Doraville,” Falana said.
As part of Nigeria’s overall strategy, he said, the Federal Government requested for mutual legal assistance from the US. The requests, he explained, were made to ensure that the full resources of the international community were available to enhance Nigeria’s efforts at recovering the loot and other assets in accordance with the provisions of the UN Charter Against Corruption (Convention).
“The MLA Request was made on 28 August 2012 in accordance with the provisions of the Convention. The request was made in the belief that the USA would give priority consideration to returning any confiscated funds to Nigeria on the basis that the country was both the requesting party and the victim of the crimes.
“The United States has itself obtained a default judgment in the USA against Doraville, which it is now seeking to enforce in Jersey under the Civil Asset Recovery (International Cooperation) (Jersey) Law 2007,” Falana stated.
However, he noted that if the proceedings are successful, the monies recovered will be confiscated by the Jersey authorities, subject to the terms of any asset sharing agreement between Jersey and the USA.
“I understand that there is such an agreement in place, and that it may provide for any monies so recovered to be divided between the USA and Jersey in equal shares to the exclusion of Nigeria.
“From statements made by the USA in other proceedings, it appears that the USA has been careful not to make any clear statement of its intentions as to the fate of any monies recovered in these proceedings.
“Certainly there has been no clear statement to the effect that monies ultimately recovered by the USA in these proceedings will be returned to Nigeria. Instead, the USA has made vague and unspecific references to the monies being applied ‘for the benefit of the people of Nigeria,” argued Falana.
He also recalled that Ms. Debra Lynn Laprevotte, a supervisory special agent of the FBI, had filed an affidavit in support of an application made by the US government in England for freezing orders in support of the same US forfeiture proceedings, which it is seeking to enforce against Doraville in Jersey.
“In paragraphs 6 and 7 of her affidavit [p.118], Ms. Laprevotte notes that ‘the US civil forfeiture action has been sealed pending applications to freeze relevant assets in England, Jersey and France,” he observed.
The lawyer said since 2010, a special unit of the US Department of Justice has been engaged in “the Kleptocracy Asset Recovery Initiative” which, seeks through international cooperation, to recover assets acquired through the abuse of public office by corrupt officials and their associates so that they may be used for the benefit of the people of the victim nations.
Ms. Laprevotte, Falana equally observed, in paragraph 86, acknowledged that as a matter of English law, the English courts would not enforce a foreign penal law, contending, however, that “the substance of the proceedings [the US forfeiture proceedings] is the disgorgement of proceeds of fraud (or other wrongdoing) which is to be recovered for the benefit of those harmed by the wrongdoing…the current proceedings seek the civil forefeiture of stolen monies with a view to their recovery for the benefit of the people of the nation harmed by the abuse of office.”
The meaning of what she said, maintained Falana, remains unclear. He wondered if it was intended to explain how the US government proposes to use such monies for the benefit of citizens of another sovereign state.
Relatedly, Falana pointed at the correspondence between FBI agent Elizabeth Aloi (who has also sworn evidence in the instant proceedings) and Stephen Goadby of the UK Home Office on the issue of the intentions of the US government in respect of any monies confiscated in England in support of the US forfeiture proceedings.
In the correspondence, Mr. Goadby, the UK Home Office staff, said: “The UK may deduct any reasonable expense, but otherwise on the basis that the UK is satisfied that the funds are embezzled public money from Nigeria, the UK considers itself under an obligation under UNCAC (if not in exact language then in spirit) to return the money to the requesting state. In these circumstances and in principle (in advance of having the full facts of the case), the UK would return the money to the US with some confirmation from the US would seek to return the money to Nigeria.”
Ms. Aloi’s response to Mr. Goadby on 24 June, 2014, Falana said, stated that: “In connection with the United States’ June 9, 2014, Fifth Supplemental Request for Assistance in the Investigation of Mohammed Sani Abacha, Abubakar Bagudu and Others, you have asked the United States to confirm how the United States intends to spend assets that may be successfully forfeited to the United States in our civil forfeiture action, United States v All Assets Held in Account Number 80020796, in the Name of Doraville Properties Corporation, Et Al., 13-cv-1832 (D.D.C).
“In keeping with US practice of using forfeited funds, where practicable and not inconsistent with the law, to restore forfeited property to victims of the underlying criminal violation or to protect the rights of innocent persons in the interests of justice, we anticipate that, if funds are forfeited in this matter, the United States will endeavour to utilise the assets for the benefit of the people of Nigeria.”
Falana said he observed that Ms. Aloi’s choice of words were carefully made, indicating a reluctance to confirm that the US government would repatriate any monies to Nigeria. This, he added, was highlighted by the English Court of Appeal (USA v Abacha  1 WLR 1917, which discharged the freezing orders obtained by the USA on the basis that they had been improperly granted. Recalling the ruling, Mr. Falana said Gloster LJ, who gave the judgment, agreed to by the other members of the court, held that the US civil forfeiture judgment was not enforceable as a matter of English law.
“The justification of the present proceedings is clearly penal (namely allegedly illegal money laundering in the US), and their basis is not compensatory. The fact that ultimately the US may, in its absolute discretion, decide (and its current intentions are not transparent, to say the least) whether, pursuant to treaty obligations or otherwise, to remit monies derived from the forfeited assets to the Federal Republic of Nigeria is irrelevant to the correct characterization of the US proceedings,” he argued.
In addition, the lawyer argued that the United States of America’s stance is contrary to the purpose and spirit of the MLA Request, which was intended to ensure the recovery of monies for Nigeria, the victim country.
The US, he noted, has demonstrated a complete disregard of any mutual understanding or co-operation as between itself and Nigeria by its continued pursuit of forfeiture proceedings against the assets of Blue Holding (1) PTE Limited and Blue Holding (2) PTE Limited, two companies linked to Bagudu.
This was despite a letter written by Nigeria’s Attorney-General on 16 June, 2014, confirming that Nigeria and Bagudu had reached a settlement agreement in relation to the assets and asking that the Letter of Request from Nigeria to the US can be read in relation to Mr. Bagudu and/or the Blue Companies should be treated as withdrawn.
“This request was entirely ignored by the USA. The strong inference is that the USA is pursuing its “Kleptocracy Asset Recovery Initiative” according to its own agenda, rather than with the intention of repatriating all or any of the monies recovered to Nigeria.
“I understand that it is suggested by the USA that Nigeria is estopped from bringing proceedings against Doraville in Jersey to recover the proceeds of the fraud because the Federal Government made the MLA Request and because the Federal Government assisted in facilitating the service of the US proceedings upon Mohammed Sani Abacha and Bagudu.
“I do not understand this suggestion. As I have indicated above, the whole point of the MLA Request was to secure the recovery of monies for the Nigeria.
“It appears that the USA now, however, does not intend to abide by the spirit of the request, and instead intends itself to apply any monies recovered by it as it alone sees fit. In the absence of a common understanding between Nigeria and the USA as to what should happen to the monies recovered in the Doraville proceedings, no estoppel can exist.
“I also understand that the USA is suggesting that the proceedings brought by the Federal Republic of Nigeria against Doraville are in some way collusive or are otherwise an abuse of court process. I do not understand this contention. The Federal Republic of Nigeria is bringing proceedings in Jersey against Doraville to establish Nigeria’s status as the party which has been defrauded of these monies, and therefore the party with a paramount proprietary interest in them. There is nothing artificial or underhand about these proceedings,” he argued.
What Nigeria seeks, he said, is to establish as clearly as possible its own interest in these monies, adding that it is the frivolous objection of the USA that has prevented the court from ordering the repatriation of the fund to Nigeria.
Switzerland’s role, he said, could be gleaned from what ensued after a letter (Ref No: HAGF/AGG/2014/Vol. 1/1, dated 14 July, 2014) addressed to the Attorney-General of Geneva, Mr. Oliver Journor, by Nigeria’s former Attorney-General, Mr. Mohammed Adoke (SAN). The letter informed the Swiss authorities that Messrs. Mohammed Abacha, Abba Abacha and their associates had entered into a Repatriation Agreement with Nigeria. This was to the effect that the Luxemburg fund, hitherto held by the Canton of Geneva, Switzerland, formed part of the assets to be forfeited to Nigeria.
Consequently, Mr. Adoke instructed the Attorney-General of Geneva, upon the confiscation of the Luxemburg fund, to pay as follows: (i) CHF 3,000,000 to the State of Geneva to cover its expenses
(ii) the Swiss Francs equivalent (CHF) of USD 9, 703,141.67 (corresponding to 4% of the gross amount of USD 242,578,541.72 recovered from Liechtenstein on 23rd December, 2013 and 25th June 2014), plus 4% of the gross amount of the forfeited Luxembourg in favour of the account of Mr. Enrico Monfrini, in settlement of his professional fees.
(iii) the Swiss Francs equivalent (CHF) of USD 6, 792,191.17 (corresponding to 4% of the gross amount of USD 242,578,541.72 recovered from Liechtenstein on 23rd December, 2013 and 25th June 2014), plus 2.8% of the gross amount of the forfeited Luxembourg Assets in favour of the account of Mr. Enrico Monfrini, in settlement of the professional fees and expenses of the attorneys of the Abacha family.
(iv) The euro equivalent (EUR) of USD 5,000,000 to the account of Mr. Enrico Monfrini, as a retainer for the action to be brought against MM Warburg & Co. Luxembourg SA and other potential defendants.
(v) USD 750,000 on account of HBK Investments Advisory SA, in settlement of their professional fees for the management of the Luxembourg assets.
(vi) The balance of the forfeited Luxembourg assets should be converted into US Dollars and paid into the special recovery account of the Nigerian Government with the Bank for International Settlements.
“In line with the instructions of the Attorney-General of Nigeria, the Swiss Government has paid the professional fees set out in (i) to (vi) above on or about December 23rd 2014. However, the Swiss Government has refused to repatriate the balance of $321 million to Nigeria without any legal justification whatsoever.
“In order to further delay the repatriation of the said sum of $321 million the Swiss Government blackmailed Nigeria to allow the World Bank to monitor the projects to be executed with the fund. Although the Government of Nigeria agreed to the illegal conditionality, the Swiss Government has refused to repatriate the fund.
“Having regard to the fact that the World Bank had conspired with a former Finance Minister in Nigeria, Dr. (Mrs.) Ngozi Okonjo-Iweala, to produce a fake report listing several projects, which were not executed in any part of Nigeria, the attempt to involve the bank in the management of the fund by the Government of Nigeria is fraudulent. It is also a subversion of the sovereign rights of the people of Nigeria,” Falana submitted.
He concluded that the idea of fresh dialogue being suggested to by the US would further delay the recovery and repatriation of the $300 million. Falana called on President Barack Obama to ensure the withdrawal of objections filed in the recovery proceedings before the end of his term of office He also called on the government of Switzerland to repatriate the sum of $321 million of the Abacha loot to Nigeria without any further delay.