➥ CASE SUMMARY OF:
A.G of The Federation v. Anuebunwa (SC.CV/118/2021)
by Branham Chima.
➥ ISSUES RAISED
Extradition.
➥ CASE FACT/HISTORY
Pursuant to the Extradition Act, Cap E25, Laws of the Federation of Nigeria 2004, the Honourable Attorney-General of the Federation and Minister of Justice, ABUBAKAR MALAMI, SAN by an application on the 14th May, 2018, signified to the trial Court, the Federal High Court, that a request was made to him by a Diplomatic representative of the Embassy of the United State of America, Abuja for the surrender of Princewill Ugonna Anuebunwa who is a subject of a two(2) count Court indictment in case No. S6 16 Cr.575 (PAC) in the United States District, Southern District of New York, United States of America and filed on the 19th June, 2017 in the United States. On 1/6/2020, the Federal High Court Coram Hon. Justice I.E. Ekwo had granted the application for extradition and ordered the surrender of the Respondent to the Attorney General of the Federation for onward surrender to the United States to answer for criminal charges in that country. The Respondent appealed against the order of extradition by notice of appeal filed on 10/6/2020. The Court of Appeal, Abuja Division Coram: Stephen Jonah Adah, Mohammed Baba Idris, and Mohammed Mustapha JJCA held by the majority decision of the Court of Appeal, delivered by M.B. Idris and Mohammed Mustapha JJCA with Stephen Jonah Adah JCA dissenting, that the trial Court did not appreciate the issues in controversy having failed to make findings of fact on the issues joined on the evidence which were material for reaching a just decision. The Court of Appeal then ordered the case sent back to the trial Court for retrial and an order of accelerated hearing of the matter by the trial Court. Adah JCA dissenting upheld the decision of the trial Court. Hence this appeal by the Attorney General of the Federation.
➥ ISSUE(S) & RESOLUTION(S)
[PRELIMINARY OBJECTION: DISMISSED]
↪️ I. Whether, having regard to the provisions of Section 12 of the 1999 Constitution of the Federal Republic of Nigeria, this Honourable Court ought not to strike out and/or dismiss this appeal and set aside all prior proceedings and judgments for want of jurisdiction?
RESOLUTION: IN APPELLANT’S FAVOUR.
[THE COURT HAD JURISDICTION; THE EXTRADITION DECREE IS APPLICABLE TO NIGERIA
‘My Lords, it is clear that the argument of learned Respondent’s counsel that the 1931 treaty has not been domesticated is erroneous and all the case law cited to ground same are irrelevant in the circumstances of this case. As stated in Abacha v. Fawehinmi (2006) 6 NWLR Pt.660 at Pg.340 by this Court, per Ogundare, JSC: “Before its enactment into law by National Assembly, an international treaty has no such force of law as to make its provisions justiciable in our Courts. See the recent decision of the Privy Council in Higgs & Anor v. Minister of National Security & Ors. The Times of December 23, 1999 were it was held that- “In the law of England and the Bahamas, the right to enter into treaties was one of the surviving prerogative powers of the Crown Treaties formed no part of domestic law unless enacted by the legislature. Domestic Courts had no jurisdiction to construe or apply a treaty, nor could unincorporated treaties change the law of the land. They had no effect upon citizens right and duties in common or statute law…” in my respectful view, I think the above passage represents the correct position of the law, not only in England, but in Nigeria as well.” Thus, any treaty entered into must be domesticated. The treaty between USA and Great Britain in 1931 was applicable to Nigeria because as at 1931, Nigeria was part of the British Empire. However, the Extradition Decree of 1967 and the Extradition Act 2004, Cap E25 LAWS OF THE FEDERATION as published has satisfied the requirements of Section 315 (4) b of the 1999 Constitution as (altered) being an “existing law” in force immediately before the coming into effect of the 1999 Constitution. This head of objection is misconceived as the trial Court had jurisdiction to consider and determine the application.’]
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↪️ II. Whether this Honourable Court has the jurisdiction to entertain this appeal, having regard to the defective service of the notice of appeal therein?
RESOLUTION: IN APPELLANT’S FAVOUR.
[THERE WAS A PROPER SERVICE OF THE NOTICE OF APPEAL
‘The important consideration here which meets the ends of law and justice is that the Respondent who has participated fully in this appeal since it was instituted in this Court in February, 2021 must be that the Court is satisfied that the Respondent has in fact been served. The Respondent endorsed the address of his counsel as shown in the record of appeal. The Respondent acknowledged service through his counsel in this matter at the trial Court and the Court below. The Respondent instructed Messer Amos Adenike & Co., to prosecute his appeal and the address of counsel served as address for service on the Respondent as he was in detention at Medium Security Correctional Center, Kuje, pursuant to the order of the trial Court. In the first instance, I agree that the Respondent’s new counsel should have notified the Court and parties of the change of counsel and address in accordance with the extant rules of Court and not hold the Appellant at fault for endorsing Messer Amos Adenike & Co address for service of the processes meant for him.’
‘My Lords, the circumstances of this case are peculiar-. When the Appellant realized that Amos, Adenike & Co had been disengaged by letter dated 08/02/2021, the Appellant in abundance of caution served the Notice and record of appeal on the Respondent on 10/02/2021. Thus, the complaint here is factually incorrect. The technical or procedural hitch which could have led to procedural incompetence of this Court to hear the appeal was cured. Where a Court has substantive jurisdiction, as in this appeal, but there is at one-point lack of procedural competence, such incompetence can be waived by the Court or the Court can allow the party in disobedience to cure same at any time in the proceedings. See MOBIL PRODUCING v. LASEPA (2002) 18 NWLR Pt. 786 Pg.1 at 32, ABUBAKAR v. NASAMU (2012) 17 NWLR Pt. 1330 Pg. 407 at 593. In any event, there was in my view proper service of the notice of appeal pursuant to the proviso to Order 2 Rule 1(b) of the Supreme Court Rules.’]
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[MAIN APPEAL: ALLOWED]
↪️ I. Whether the Court below was right to have held that Section 84 of the Evidence Act, 2011 (as amended) applies to extradition proceedings?
RESOLUTION: IN APPELLANT’S FAVOUR.
[THE DOCUMENTS SOUGHT TO BE TENDERED ARE NOT COMPUTER GENERATED DOCUMENTS
‘The correct interpretation to be given to Section 84 of the Evidence Act, where electronically generated document is sought to be tendered is that such electronically generated evidence must be certified and must comply with the preconditions laid down in Section 84(2). It appears that the documents in question do not even fall within the scope of Section 84 of the Evidence Act. The documents relied upon by the Appellant are as follows: i. Original copy of Letter of Certification with the seal of the United States of America’s Department of State dated 18th day of October, 2017 signed by the Secretary of State of the United States Rex W. Tillerson. ii. Original copy of Letter of Certification with the seal of the United State of America’s Department of State dated 6th day of October, 2017 signed by the Director/Deputy Director, Office of Internal Affairs, Criminal Division, Department of Justice and duly commissioned and qualified in the presence of the Attorney General of the United States – Jefferson B. Sessions. iii. Original copy of a letter of Certification, dated 6th October, 2017, certifying the affidavit and all attached documents in support of the request for the extradition of the Respondent and iv. Original copy of affidavit in support of request for the extradition of the Respondent and duly sworn to by Assistant U.S. Attorney, United States Attorney’s Office for the Southern District of New York – Adrew K. Chan. These documents are three original letters and one original affidavit. These are not computer-generated documents. The wordings of Section 84 of the Evidence Act 2011 do not contemplate that before an original official letter is tendered and admitted in evidence, the party tendering same must satisfy the conditions in the provision. Neither does the provision envisage same where the admissibility of an original affidavit is in issue. It would be ridiculous to assume that a document which was typed using a computer is a computer-generated document.’]
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↪️ II. Whether the Court below was right to have concluded that the defence of mistaken identity raised by the Appellant (herein Respondent) was not satisfactorily rebutted by the Respondent (herein Appellant) in the circumstance and set aside the surrender made by the trial Judge? (Distilled from ground 3 of the Appellant’s Notice of Appeal)?
RESOLUTION: IN APPELLANT’S FAVOUR.
[THE RESPONDENT IS ADEQUATELY IDENTIFIED; THE MISTAKEN IDENTITY WAS NOT SUBSTANTIATED BY THE RESPONDENT
‘The Respondent herein claimed that the extradition package described him as a “black male” whereas he is light skinned in color. We all know without any prevarication or dissembling that “black male” refers to race rather than tone of skin color. The Extradition package submitted to the Appellant by the requesting state contained particularly Exhibit D1-D4 namely: UAE Entry Visa, Federal Republic of Nigeria’s issued Driver’s license, all carrying a photo impression of the Respondent. The Respondent never swore that the photographs attached were not of him. It is my view that Exhibit CAUI, the extradition package with its details of photo evidence of the Respondent rebutted the assertion of the Respondent that he is a victim of false identity on the balance probabilities to warrant the evidential burden to shift to the Respondent. Exhibit CAUI was very detailed regarding the identity of the Respondent. It is not enough for the Respondent to make the serious claim of mistaken identity then fail to substantiate it by any evidence.’
‘The circumstances of this case are clear. The Respondent claims mistaken identity on the basis that he has a twin brother who may be the person sought to be extradited. The affidavit on record shows that the Appellant’s twin brother bears another name and is also facing extradition in the United Kingdom. A claim of mistaken identity is relevant where Mr. Peter so called and identified is mistaken for Mr. James who bears a different name and identity. Where Mr. Peter is sought to be arrested and he is in fact arrested, he cannot claim that the authorities should have arrested Mr. James as he is not Mr. James. That is to say where the authorities seeking an identifiable person called Mr. Peter, mistakenly arrests another identifiable person and calls him Mr. Peter whereas that other person’s rightful name and identity is Mr. James, then Mr. James can lay claim to being mistaken for Mr. Peter. That is not the case here.’
‘It appears that this provision is inapplicable having regard to the facts and circumstances of this case. It would have been applicable if the request had been for extradition of Princewill Ugonna Anuebunwa and the Appellant argued that he is not Princewill Ugonna Anuebunwa. The request package and application filed at the trial Court requested the extradition of Princewill Ugonna Anuebunwa. The Appellant did not claim that he is not Princewill Ugonna Anuebunwa. He only alleged that the target of the extradition proceedings must be his brother. But his brother has a totally different name. He did not allege that they share the same name. It would have been a different case if the extradition request bore his brother’s name but he was the one arrested and sought to be extradited. If the Appellant wanted to apply for the extradition of the Respondent’s brother, he would have so applied. The Appellant would not have listed the Respondent’s name in the application. There is no issue of mistaken identity here. Section 9(6A) of the Extradition Act, 2018 is indeed irrelevant to this case. All the Respondent’s argument in this regard amounts to a failed attempt to force the provision to apply to a totally unrelated set of facts. I am of the view that where the counter-affidavit is unable to substantially rebut the evidence in the requesting affidavit, there is no need for a further affidavit. When any fact is especially within the knowledge of a defendant and upon which he would want to rely, the burden of proving it is on him. It is not enough to assert as shown on Pg. 205 of the record in the Cross-appellant’s counter-affidavit that he had never been to the United States, that only his twin brother had been to the USA and that he is not a black male with brown eyes etc. The averments in the counter affidavit of the Respondent/Cross-Appellant at trial were too feeble compared to the quality and quantity of affidavit evidence adduced by the requesting country. No doubt it was wrong for the trial Court to place the evidential burden of proof wholly on the requesting country in the way it was expressed. However, even where the decision is right but the reasons given for it is wrong so long as it has not caused miscarriage of justice, it will not be set aside.’]
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✓ DECISION:
‘Appeal Allowed.’
➥ FURTHER DICTA:
⦿ TREATY SHOULD BE PROCLAIMED BY AN ORDER IN THE GAZETTE BEFORE NIGERIAN COURTS WILL IMPLEMENT THEM
Where a treaty or other agreement (in this Act referred to as an extradition agreement) has been made by Nigeria with any other country for the surrender, by each country to the other, of persons wanted for prosecution or punishment, the President may by order published in the Federal Gazette apply this Act to that country. Therefore, whether a particular pre-1960 treaty is in force or not, the Extradition Act requires an order to be made regarding the treaty in the Federal Gazette before the treaty can be implemented. In the event that an extradition treaty has not been proclaimed by way of an order published in the Federal Gazette, the treaty will not be justiciable in Nigerian Courts. This does not mean that the treaty is no longer in force, nor does it mean that Nigeria’s obligations under the treaty have been vacated. It only means that Nigeria has not taken the municipal steps for implementing the treaty. — H.M. Ogunwumiju JSC.
⦿ SPECIFIC STATUTES ARE NOT AFFECTED BY THE GENERAL STATUTE
The law is that specific statute on a matter is not affected by a general enactment on the same matter unless the earlier in time is radically inconsistent with the later. — H.M. Ogunwumiju JSC.
⦿ STEPS FOR EXTRADITION
Nigeria’s extradition proceedings are structured towards prompt and efficient disposition of issues. The procedure starts with a request for the surrender of a fugitive criminal, made in writing to the Attorney-General of the Federation of Nigeria. The request is to be made by a diplomatic representative or consular officer of the country making the extradition request. Upon receiving the request, the Attorney-General has the discretion as to whether or not to initiate extradition proceedings. The Attorney-General cannot be compelled by order of mandamus or otherwise to initiate extradition proceedings where he has exercised the discretion to not proceed. The requesting State and Nigeria’s Federal Ministry of Justice have the duty to ensure that certain extradition prerequisites are fulfilled. The 1999 Constitution by Section 34 and 35 guarantees freedoms including those relating to movement, liberty and dignity of the person. In protection of the constitutionally guaranteed rights, the Courts will not in the name of extradition carelessly surrender its citizens and non-citizens alike unless the Court is satisfied on the facts and position of the law. Prior to commencing extradition proceedings in the Federal High Court, a number of matters must be considered so as to present the required facts in the context of applicable law, otherwise the extradition application is likely to fail. Pursuant to Sections 3, 9, and 11 of the Extradition Act, the Attorney General of the Federation must file an affidavit stating inter alia that the United states of America has submitted a request to the Attorney-General who must be satisfied that provision is made by the Laws of the United States of America, such that so long as the Respondent has not had reasonable opportunity of returning to Nigeria, he will not be detained or tried in that Country for any offence committed before his surrender other than the extradition offence which may be proved by the fact on which his surrender is granted. He is satisfied that the offence in respect of which the Respondent’s surrender is sought is not an offence of a political character and he is satisfied that the request for the surrender of the Respondent was not made for the purpose of prosecuting or punishing him on account of his race, religion, nationality or political opinions and that the said request was made in good faith and in the interest of justice. The Attorney General of the Federation must show by affidavit evidence that if the Respondent is eventually surrendered, he will not be prejudiced at his trial and will not be punished, detained or restricted in his personal liberty, by reason of his race, nationality or political opinions, and he is satisfied that the offence for which the Respondent’s surrender is sought is not trivial in nature or that having regard to all the circumstances in which the offence was committed it will not be unjust or oppressive, or be too severe a punishment, to surrender him. It must be averred furthermore, that the Attorney General is satisfied that the Respondent has been indicted of the offence for which his surrender is sought but that he is unlawfully at large, and, there is no criminal proceeding pending against him in Nigeria for the offence for which his surrender is sought, or any other offence for the time being. — H.M. Ogunwumiju JSC.
⦿ WHAT IS AN EXTRADITION & ITS PROCESS
Extradition is a cooperative legal process of one state called the surrendering state or authority which surrenders an individual to another state called the requesting state for prosecution or punishment for crimes committed within the requesting country’s jurisdiction. The extradition process is usually spelled out in bilateral or multilateral extradition treaties or agreements. Extradition becomes necessary when a criminal fugitive flees from one country to another to avoid facing trial or punishment. Persons who may be extradited include those who have been tried and convicted but escaped custody by fleeing the country, and those convicted in absentia- a trial in which the accused person is not physically present. Extradition is distinguished from other methods of forcibly removing undesirable persons from a country, such as exile, expulsion and deportation. Extradition procedures are usually determined by the terms of treaties between individual countries or by multilateral agreements between groups of countries such as the Common Wealth countries or the countries of the European Union. The receiving government then refers to its laws and its treaty-specified obligations to the requesting nation and decides whether or not to extradite the person named in the warrant. Treaties signed in recent decades tend to take a “dual criminality” approach, classifying as extraditable all crimes that are punishable in both jurisdictions. Older extradition treaties, by contrast, tend to list covered offenses. — H.M. Ogunwumiju JSC.
⦿ WHAT MUST BE ESTABLISHED BEFORE AN EXTRADITION WILL BE GRANTED BY THE COURT
As stated earlier, before the Court can grant the surrender order of a citizen of its country or a fugitive expatriate, the applicant in this case, the AGF is expected to establish by prima facie evidence: a. That there is a request for the surrender of the fugitive; b. That the fugitive is accused of extradition offences in a country other than Nigeria; c. That there is warrant of arrest issued outside Nigeria authorizing the arrest of the fugitive; d. That the warrant was issued in a country to which Extradition Act applies; e. That the warrant was duly authenticated and same relate to the fugitive; f. That the offences which the fugitive is accused of are ext g. That the evidence produced will according to theraditable offences; law in Nigeria, justify the committal of the fugitive for trial if the offences were committed in Nigeria; and h. That the surrender of the fugitive is not precluded by the provisions of the Extradition Act and particularly Section 3 (1-7) of the Act. See Order V Rules 1 Federal High Court (Extradition Proceedings) Rules 2015 and Sections 3, 5, 6 & 9 of the Extradition Act, CAP E25 LFN 2004. — H.M. Ogunwumiju JSC.
⦿ EXTRADITION PROCEEDINGS ARE SUI GENERIS; THEY ARE PECULIAR TYPE OF PROCEEDINGS
Generally, all cases and matters before the Courts in Nigeria are either civil or criminal. The proper classification of a case is important because of the applicable procedural rules and standards. Extradition Proceedings in Nigeria are sui generis and strictly guided by the Extradition Act and Extradition Proceedings Rules. The proceedings are criminal to the extent that they deal with a criminal charge or conviction raised by the requesting State. However, unlike regular criminal proceedings, extradition proceedings do not result in a determination of whether the alleged fugitive is guilty or innocent, nor do they end in a post-conviction sentence. Extradition proceedings are therefore a peculiar kind of criminal proceedings. — H.M. Ogunwumiju JSC.
⦿ WHAT IS ATTACHED TO AN AFFIDAVIT IS PART OF THE AFFIDAVIT
It is settled law that what pleadings is to a party is what an affidavit is to a party in an interlocutory application or even in certain substantive or originating process and any document attached to an affidavit is part of the affidavit and must be considered together. See UBN PLC v. ASTRA BUILDER (W.A) Ltd (2010) LPELR-3383(SC). The affidavit evidence of the Appellant with the bundle of extradition documents were copious enough to make a prima facie case. — H.M. Ogunwumiju JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Helen Moronkeji Ogunwumiju, J.S.C.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Akutah Pius Ukeyima, Chief State Counsel.
⦿ FOR THE RESPONDENT(S)
Chikaosolu Ojukwu Esq.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
⦿ FIVE CLASSES OF ERROR OF LAW
In MMA INC & Anor v. NMA (2012) LPELR-20616 (SC) per Suleiman Galadima JSC reiterated this principle aptly thus: “… Five particular classes of errors of law, which when addressed by the grounds can be categorized as grounds of law have been set out in the decision of this Court in Comex Ltd v. Nab Ltd (1997) 3 NWLR (Pt.643) at 656- 657, while affirming the dictum of Nnaemeka-Agu JSC of blessed memory) in Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) 718 at 744-745, to wit: It is an error in law if the adjudicating Tribunal took into account some wrong criteria in reaching its conclusion or applied some wrong criteria in reaching its conclusion or applied some wrong standard of proof or; if although applying the correct criteria, it gave wrong weight to one or more of the relevant factors, see O’KELLY V. TRUSTHOUSE FORTE PLC. 19833 ALL E.R at pages 456. Several issues that can be raised on legal interpretation of deeds, documents, terms of art, words or phrases and inferences drawn therefrom are grounds of law: OGBECHIE v. ONOCHIE (NO.1) Supra at pp. 491-492. Where a ground deals merely with a matter of inference, even if it be an inference of fact, a ground framed on it is a ground of law; provided it is limited to admitted or proved and accepted facts. EDWARDS v. BAIRSTOW(supra) at p.55 H.L. For many years, it has been recognized that inferences to be drawn from a set of proved or undisputed facts, as distinct from primary facts, are matters upon which an appellate Court is as competent as the Court of trial. See BENMAX v. AUSTIN MOTORS Co. Ltd. 1949 All E.R 326 at P. 327. Where a Tribunal states the law on a point wrongly, it commits an error in law. Lastly I should mention one class of grounds of law which lead the deceptive appearance of grounds of fact id est where the complaint is that there was no evidence upon which a finding or decision was based. This is regarded as a ground of law, on the premises that in a jury trial there would have been no evidence to go to the jury. Before a Judge sitting with a jury could have left a case to the jury there ought to have been more than scintilla of evidence. So, for this rather historical reason, a ground of appeal complaining that there was no evidence, or no admissible evidence upon which a decision or finding was based has always been regarded as a ground of law.”
⦿ BURDEN OF PROOF IS TWO-FOLD
OKOYE & ORS v. NWANKWO (2014) LPELR-23172 (SC) wherein Per Peter-Odili, JSC opined thus: “Burden of proof is two-fold. The first is the ability of the Plaintiff to establish and prove the entire or reasonable portion of his case before a Court of law that can give judgment in his favour. This is always constantly on the Plaintiff. The other type is related to particular facts or issues which a party claims exist. It is this burden of proof that oscillates from one party to the other. While the first type of burden of proof is called legal burden of the burden of establishing a case, the second one is called evidential”.
➥ REFERENCED (OTHERS)
