CORAM

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MUSA DATTIJO MUHAMMED

CHIMA CENTUS NWEZE

HELEN MORENIKEJI OGUNWUMIJU

TIJJANI ABUBAKAR

EMMANUEL AKOMAYE AGIM

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PARTIES

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ATTORNEY-GENERAL OF THE FEDERATION

APPELLANTS 

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PRINCEWILL UGONNA ANUEBUNWA

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, ATTORNEY GENERAL, CONSTITUTIONAL LAW, COURT, JURISDICTION, LAW OF EVIDENCE, LEGISLATION, PRACTICE AND PROCEDURE, WORDS AND PHRASES.

 

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SUMMARY OF FACTS

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 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.

The Federal High Court 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 to the criminal charges in that Country.

The Respondent appealed against the Order of Extradition at the Court of Appeal; the Court stated that the trial Court did not appreciate the issues in controversy having failed to make findings of fact on the issues joined in 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.

At the hearing of the appeal at the Supreme Court, the Respondent raised a preliminary objection on the jurisdiction of the Court or on the alternative that the Notice of appeal be struck out for incompetence on grounds that by virtue of Section 12 of the 1999 Constitution (as amended), the trial High Court was not possessed of the requisite jurisdiction to either construe or apply the provisions of the Extradition Treaty between the United State of America and Great Britain, signed at London, on 22nd December, 1931 in this case, thereby rendering all the proceedings and judgments built on the unincorporated treaty a nullity amongst other grounds.

 

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HELD

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Appeal Allowed, Cross Appeal Dismissed

 

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ISSUES

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1. Whether the Extradition Treaty between the United State of America and United Kingdom 1931 is applicable to Nigeria as an existing law.

2. Whether in the circumstance service of Notice of appeal on Respondent’s Counsel is proper service.

3. Whether or not ground 1, 2 & 3 of the Notice of appeal is competent to sustain this appeal.

Substantive Appeal

1. Whether the Justices of the Court of Appeal were right to have held that Section 84 of the Evidence Act, 2011 (as amended) must apply in relation to authentication/admissibility of foreign documents. (Grounds II)

2. 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 order made by the trial judge. (Grounds III)

3. Whether the Court below was right when it refused to strike out issues 1 formulated by the Appellant (herein Respondent) for not arising from the ground (iv) of the grounds of appeal as canvassed. (Grounds 1).

Cross Appeal

1. Whether the lower Court was right not to dismiss the extradition application having regard to Section 9 (6A) of the Extradition (Amendment) Act 2018.

 

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RATIONES DECIDENDI

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EXTRADITION TREATIES – APPLICABILITY OF PRE AND POST INDEPENDENT EXTRADITION TREATIES IN NIGERIA

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“Extradition treaties that are directly relevant to the territory of Nigeria fall into two distinct periods in time. On the one hand, there are pre-independence treaties entered into by the British colonial administration. On the other hand, there are post-independence treaties entered into by Nigeria as a sovereign State.

The applicability of pre-independence treaties to Nigeria derives from a devolution of treaty agreement between Nigeria and Britain. On October 1, 1960, the territories formerly comprising of the British Colony and Protectorate of Nigeria attained sovereign independence as a State known as the Federation of Nigeria. Using the instrumentality of an exchange of letters, dated October 1, 1960, between the High Commissioner for the United Kingdom in the Federation of Nigeria and the Prime Minister of the Federation of Nigeria, Nigeria agreed to assume, from October 1, 1960, all obligations and responsibilities of the United Kingdom which arise from any valid international instrument in so far as such instruments may be held to have application to or in respect of Nigeria. These letters together embody a treaty. It is instructive to emphasize that a treaty can be by exchange of letters or may be embodied in several documents such as the October 1, 1960 letters exchanged between Nigeria and the United Kingdom. Indeed, the Vienna Convention on the Law of Treaties clearly recognizes that a treaty may be embodied in a single instrument or two or more instruments. The nomenclature of such instruments are not prejudicial to the treaty they create.

By virtue of the Nigeria International Rights and Obligations Treaty (created by exchange of letters), Nigeria is bound by pre-1960 extradition treaties relating to the territory of Nigeria but entered into between the United Kingdom and other States. However, Nigeria has indicated that certain pre-1960 extradition treaties are no longer in force in respect of the country. PER H.M. OGUNWUMIJU, J.S.C

 

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EXTRADITION TREATIES –PREREQUISITE FOR THE JUSTICIABILITY AND IMPLEMENTATION OF EXTRADITION TREATIES BEFORE NIGERIAN COURTS

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“Generally, extradition treaties between nations are executory in character and are binding on domestic Courts.

However, for extradition treaties to be justiciable before Nigerian Courts and implemented by the executive arm of government, they must be domesticated by means of an order made pursuant to the Extradition Act 2004.

The Extradition Act categorically states that:

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.

The extradition treaties between Great Britain and Liberia signed on 16 December, 1892 and the United States of America signed on 22 December, 1931 have been recognized by Nigeria as binding on it, subject to certain modifications.

The respective orders have been issued on these two treaties and the Extradition Act recognizes the orders made in relation to the United States of America and Liberia.” PER H.M. OGUNWUMIJU, J.S.C

 

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CASES CITED

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STATUTES REFERRED TO

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Constitution of the Federal Republic of Nigeria1999 (as amended)

Evidence Act 2011

Extradition (Amendment) Act, 2018

Extradition Act, Cap E25, Laws of the Federation of Nigeria 2004

Federal High Court (Extradition Proceedings) Rules 2015

Indian Evidence Act

PACE Act

 

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