Legalpedia Citation: (2017-03) Legalpedia 30196 (CA)

In the Court of Appeal

Holden at Lagos

Fri Mar 10, 2017

Suit Number: CA/L/824/2013

CORAM

Yargata Byenchit Nimpar Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

PARTIES

ATTORNEY GENERAL OF THE FEDERATION

APPELLANTS

OLANIYI JONES

RESPONDENTS

AREA(S) OF LAW

CONSTITUTIONAL LAW, CRIMINAL LAW, EXTRADITION, PROSECUTORIAL POWERS, EVIDENCE, APPEAL, PRACTICE AND PROCEDURE, ADMINISTRATIVE LAW, INTERPRETATION OF STATUTES

SUMMARY OF FACTS

This case concerns an appeal filed by the Attorney General of the Federation against the judgment of the Federal High Court sitting in Lagos delivered on July 13, 2012. The Federal High Court had dismissed the Appellant’s application seeking to extradite the Respondent (Olaniyi Jones) based on a diplomatic request from the United States of America. The extradition request was based on an indictment in Case No. 11-CR0299 filed on April 28, 2011, for offenses of conspiracy to commit wire fraud and conspiracy to commit identity theft in violation of United States law.

The Appellant’s application was supported by an affidavit with exhibits including a certified true copy of the indictment, a certified true copy of the arrest warrant issued by the United States District Court, and a photograph of the Respondent. The Respondent contested the proceedings, arguing that the application was incompetent because, at the time of filing, there was an existing charge against him at the Akure High Court. The Appellant contended that as of the time the application was ripe for hearing, the existing charge had been withdrawn.

The Federal High Court found against the Appellant and discharged the Respondent. The Appellant, dissatisfied with the judgment, filed a Notice of Appeal on July 16, 2012, setting out four grounds of appeal.

HELD

1.The appeal was dismissed.

2. The judgment of the trial court delivered on January 21, 2011, by Hon. Justice L.A. Okunni was upheld.
3. The Court of Appeal held that the application for extradition was incompetent because, at the time it was filed, there was a pending criminal case against the Respondent at the Ondo State High Court.
4. The Court found that the Appellant’s affidavit in support of the extradition application contained false statements by claiming no criminal proceedings were pending against the Respondent when, in fact, such proceedings existed.
5. While the Court agreed with the Appellant on certain issues, it held that the main thrust of the appeal failed.
6. No order was made as to costs.

ISSUES

1. Whether the learned trial judge was right in holding that the application for extradition of the respondent is not competent because as at the time the application for extradition was instituted there was an existing charge at the Akure High Court against the Respondent?
2. Whether the learned trial judge properly evaluated the evidence before him in holding that all authorities institute criminal proceedings with express permission of the Attorney General of the Federation being the Chief Law Officer, by virtue of Section 150 and 174 of the 1999 Constitution of the Federal Republic of Nigeria (as Amended)?
3. Whether the learned trial judge judicially and judiciously considered the Appellant’s application before him when he held that the Appellant is in breach of the Extradition Act, the respondent having been in detention for more than two months?

RATIONES DECIDENDI

REQUIREMENT FOR EXTRADITION – ABSENCE OF PENDING CRIMINAL PROCEEDINGS

The statutory provision is simple and does not require any departure from the standard rule of interpretation and therefore the authority of BOARD OF CUSTOMS V. BARAU supra is not applicable nor is there need to resort to Maxwell on Interpretation of Statutes, 11th Edition page 228 wherein it states: ‘Notwithstanding the general rule that effect must be given to every word, yet if no sensible meaning can be given to a word or phrase, or if it would defeat the real object of the enactment, it may, or rather it should be eliminated. The words of a statute must be construed so as to give a sensible meaning to them if possible. They ought to be construed ut re magisvalent quam preat.’– Per YARGATA BYENCHIT NIMPAR, J.C.A.

INTERPRETATION OF SECTION 3(5) OF THE EXTRADITION ACT – CLEAR AND UNAMBIGUOUS PROVISION

Does the statutory provision in Section 3(5) of the Extradition Act require any special interpretation of the introduction of words or phrases to give it meaning? The wordings are so simple, straight forward and unambiguous and therefore does not require the application of any rule of interpretation other than the golden rule of interpretation of statutes and a Court cannot go outside such a straight forward provision in order to build into it a meaning not intended by the legislators.– Per YARGATA BYENCHIT NIMPAR, J.C.A.

MEANING OF SECTION 3(5) OF THE EXTRADITION ACT – SINGLE INTERPRETATION

The provision in issue here is not capable of two meanings but a steadfast on a one direction meaning that an application shall fail when there is a pending criminal proceeding against a fugitive. The reason for the provision is simple and it is because a host country can opt to try the fugitive instead of surrendering the fugitive. There is therefore, an option open to the host country and thus the provision.– Per YARGATA BYENCHIT NIMPAR, J.C.A.

FALSEHOOD IN AFFIDAVIT – MISREPRESENTATION TO COURT

The Appellant cannot shy away from the obvious fact and contend as he did that the trial judge misconstrued the affidavit in support. Misrepresentation is not any far from falsehood. Falsehood is a false statement or a lie, an untrue idea, lack of conformity to truth or fact. Misrepresentation is to represent incorrectly, improperly, or falsely. To represent in an unsatisfactory manner. The difference between the two words would depend on a matter of choice but in essence they can be used interchangeably. It is wrong for learned counsel to make a misrepresentation to Court.” – Per YARGATA BYENCHIT NIMPAR, J.C.A.

POWERS OF THE ATTORNEY GENERAL – INSTITUTION AND DISCONTINUANCE OF CRIMINAL PROCEEDINGS

The Attorney General has generally been acknowledged to be eminently and incontestably a master unto himself when it comes to prosecutory powers over federal offences, he is not under the control of anybody, judicial or otherwise with regards to instituting and discontinuing prosecutions. Section 170(1) (b) in clear terms underscores the importance of the office of the Attorney General of the Federation and it is also acknowledged that the powers to institute criminal proceedings is not exclusive to him but can be shared by any other authority such as the Board of Customs and Excise, NDLEA, Police, ICPC, EFCC and several such authorities who can institute criminal proceedings but ultimately, subject to the overriding powers of the Attorney General to take over.– Per YARGATA BYENCHIT NIMPAR, J.C.A.

POWERS OF OTHER PROSECUTING AUTHORITIES – IMPLIED APPROVAL OF THE ATTORNEY GENERAL

There is no provision stating that those other authorities must have the express approval of the Attorney General before instituting such proceedings. The fact that the Constitution acknowledges their powers to initiate criminal proceeds, they don’t need the express permission of the Federal Attorney General. The approval may not be express but is implied and that gives credence to the Attorney General’s powers to take over. Such other authorities are therefore subject to the overriding powers of the Attorney General to take over and discontinue.– Per YARGATA BYENCHIT NIMPAR, J.C.A.

PROSECUTORIAL POWERS OF THE EFCC – STATUTORY AUTHORITY

With respect to the issue in hand, the EFCC is acknowledged to initiate criminal proceedings in the name of the Attorney General of the Federation, or Federal Republic of Nigeria. Being a statutory body its functions includes prosecution, see Sections 1(2) and 1 (3) of the EFCC Act. It is also the coordinating authority for economic and financial crimes offences in Nigeria and they have the power to prosecute under Section 13(2) of the Act. – Per YARGATA BYENCHIT NIMPAR, J.C.A.

BURDEN OF ENSURING NO PENDING PROCEEDINGS IN EXTRADITION CASES – RESPONSIBILITY OF THE ATTORNEY GENERAL

I agree with the Appellant that it is not a constitutional requirement that any other authority initiating criminal proceedings must have the express approval of the Attorney General. That notwithstanding, the excuse that the Attorney General was not aware of the pending proceedings is untenable and it will not create an exception to the application of the Act. The burden of ensuring that no proceedings are pending is on the Applicant and cannot be waived on the excuse of lack of knowledge. – Per YARGATA BYENCHIT NIMPAR, J.C.A.

PROCEDURE UNDER THE EXTRADITION ACT – INAPPLICABILITY TO PERSONS ARRESTED UNDER OTHER LAWS

The statutory provisions quoted above is straight forward and it clearly concerns or applies to a situation where the fugitive was arrested pursuant to those provisions of the Extradition Act. It was established before the Court below that the fugitive was standing trial before the Ondo State High Court on the allegation of certain offences initiated by the EFCC. The Ondo State High Court does not have jurisdiction on matters covered by the Extradition Act and the charge before it had nothing to do with the Act.”– Per YARGATA BYENCHIT NIMPAR, J.C.A.

BASIS FOR DISCHARGE OF FUGITIVE – NON-COMPLIANCE WITH EXTRADITION ACT

The discharge of the fugitive can be justified only on the basis that the application failed for non-compliance with the Extradition Act, in that no proceedings against the fugitive should be on when an application is made for his surrender but certainly not on the basis of Section 8 and 14 of the Extradition Act quoted above. – Per YARGATA BYENCHIT NIMPAR, J.C.A.

DUTY OF COURT IN INTERPRETING CLEAR STATUTORY PROVISIONS

I simply wish to emphasize the settled position of the law where the provisions of a statute are mandatory, a Court of law cannot legitimately brush the provisions aside; it must ensure that the provisions of the statute are mandatorily complied with. – Per ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

LIMITATIONS ON JUDICIAL SYMPATHY IN STATUTORY INTERPRETATION

‘Where provision of a statute or rule of Court is clear, the duty of the Court is to interprete the clear provision by giving the plain wordings their ordinary interpretation without more. It is not the function of a Court of law to sympathise with a party in the interpretation of a statute merely because the language of the statute is harsh or will cause hardship. That is not the function of the Court. That is rather the function of the legislature.’ – Per ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

CLARITY OF SECTION 3(5) OF THE EXTRADITION ACT – MANDATORY COMPLIANCE

The provision of Section 3(5) of the Extradition Act is clear and unambiguous. It states: ‘A fugitive criminal shall not be surrendered if criminal proceedings are pending against him in Nigeria for the offence for which his surrender is sought.’ It is obvious from the above provision that no extradition proceedings shall be brought against a fugitive criminal when there is a pending criminal proceedings against him. In the instant appeal, it is evident that the Appellant failed and/or neglected to comply with the mandatory provision of the statute. – Per ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended), Sections 150(1) and 174(1)
2. Extradition Act, Sections 3(5), 8(5), 8(6), 8(7), 14
3. Economic and Financial Crimes Commission (EFCC) Act, Sections 1(2), 1(3), 13(2)

CLICK HERE TO READ FULL JUDGMENT