In The Court of Appeal of Nigeria
On Friday, the 10th day of March, 2017
Before Their Lordships
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
ATTORNEY GENERAL OF THE FEDERATION –Appellant
OLANIYI JONES –Respondent
YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Federal High Court sitting in Lagos delivered on the 13th July, 2012 wherein the Court dismissed an application brought by the Appellant seeking to extradite the Respondent on a diplomatic request from the United States of America on indictment, in Case No.11-CR0299 filed on the 28th April, 2011 for the offences of conspiracy to commit wired fraud and conspiracy to commit identity theft all in violation of United States of America Law. The Appellant dissatisfied with the judgment filed a Notice of Appeal on the 16/7/12 setting out four grounds of appeal.
The Appellant filed an application duly supported by an affidavit and exhibits which inter alia included a certified true copy of the indictment issued against the Respondents, certified true copy of the warrant of arrest issued by the United States District Court for the arrest of the Respondent and a photograph of the Respondent.
The Respondent contested the proceedings contending that the application was incompetent because as at the time of the application, there was an existing charge at the Akure High Court. The Appellant contended that as at the time the application was ripe for hearing, the existing charge had been withdrawn. The Court below found against the Appellant and discharged the Respondent. The Appellant even though served with a hearing notice did not come to Court on the date for hearing. The Appellant’s brief earlier filed and served was adopted as required by the rules of Court, see Order 18 Rule 9 (4) of the Court of Appeal Rules.
The Appellant’s Brief settled by M.S. Hassan, dated 11th April 2014 was filed on the 15/4/2014 and settled three issues for determination thus:
i. 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.
ii. Whether the learned trial judge properly evaluated the evidence before him in holding that allÂ authorities institute criminal proceedings with express permission of the Attorney 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).
iii. 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.
The Respondent’s brief is dated 20th June, 2016 filed on the same day and deemed so on the 7/11/16. The brief adopted the 3 issues formulated by the Appellant and they shall be the issues for resolution in this appeal.
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.
The Appellant submitted that the trial Court was misconstrued in its finding that the affidavit of one Akutah Pius, the Appellant’s witness amounted to falsehood because the facts deposed to were within his knowledge and that they were derived from the Attorney General of the Federation in compliance with Section 115 (1) and (4) of the Evidence Act, 2011. Further submitted that as at the time of the hearing of the application for extradition, the criminal charge against the Respondent had been withdrawn and there was no pending case against him in any Court. The Appellant finally submitted that if Section 3 (5) of the Extradition Act is given a sensible meaning, it will be evident that the said Section 3 (5) relates to the time the fugitive is being surrendered and not the time of the application for extradition process, thus, there was compliance with this section. He referred to BOARD OF CUSTOMS & EXCISE v. BARAU (1982) LPELR – SC 39.
On the other hand, the Respondent submitted that there is no denying the fact that the affidavit in support of the extradition application was misleading because as at the time the affidavit was filed, there was a criminal charge pending against the Respondent. The Respondent also contended that the Appellant went contrary to Section 3 (5) of the Extradition Act because he had been detained for several months pending trial and was charged by the Appellant for the same offence for which his extradition to the United States was sought. They therefore urged this Court to uphold the decision of the lower Court in this regard.
The bone of contention here is whether the trial judge was right to find that the application was incompetent because at the time it was made, there was a pending charge against the Respondent at the Ondo State High Court. The argument of the Appellant is that by the time the application leading to this appeal was ripe, the charge had been withdrawn. It is clear therefore that it is conceded that there was a charge at the time the application in issue herein was filed but was withdrawn before the date of hearing.
The Court below in its judgment held:
“It is indisputable that the affidavit of Akutah pius Ukeyima was sworn to on the 24th January, 2012 but the Exhibit FMJI attached to what is termed “Applicant’s Reply Affidavit on points of Law” deposed to by Oyalowo Omolola shows that the criminal charges against the Respondent were discontinued at the High Court of Ondo State, Akure Judicial Division on 7th March, 2012. This leads to the inevitable conclusion that the charges were discontinued well after this application for the extradition of the Respondent was filed. It can be said in the circumstance that the withdrawal was tendentious, in order to accord some approval to the application. It is thus beyond argument that at the material time of deposing to the affidavit in support of the application, the charges had not been discontinued and so it amounted to falsehood for Akutah Pius to assert that there were no similar criminal charges pending against the Respondent in Nigeria. Therefore, this does not only offend the provisions of the Evidence Act, but also Section 3(5) of the Extradition Act, with effect on the competence of the whole application. I therefore uphold the submission of Olatunji Esq. of counsel for the Respondent that anything done contrary to the provisions of a statute which authorizes a particular act, renders such act voids and a nullity.”
Now, Section 3(5) of the Extradition Act provides thus:
“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.”
The affidavit of Akutah was filed in support of the application and it deposed to the fact that no criminal proceedings were pending against the fugitive. The problem arose when the Appellant had cause to file a further affidavit which they tagged Applicant’s reply Affidavit on points of law deposed to by Oyalowo Omolola who deposed to facts that the criminal charges pending at the Ondo State High Court were discontinued on the 7th March, 2012. The application herein was filed on the 20th of January, 2012, which clearly shows that at the time the application was made and the fact deposed to that no criminal proceedings were pending, it is a false representation because there was a pending criminal proceeding against the Respondent. The said proceedings were only discontinued in the course of the hearing of the application. There was an overlap of 3 months.
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. That is why learned counsel have times without number been admonished to be wary of deposing to affidavits. It is strange that the Appellant expected the trial Court to act on a false affidavit even when the misrepresentation is so glaring on the face of the process. A Court is a Court of Justice and regardless of the parties before the Court, the Court must be evenhanded and that is why the symbol of justice is a lady blind folded holding a sword to strike evenly in the interest of justice.
The Appellant admitted that by the time the application was filed, a charge was pending and that offends the provisions of the Extradition Act quoted above. This is reflected by his submissions at page 6 paragraph 4 of the Appellant’s brief when he submitted that the prosecuting authority was instructed to discontinue the criminal proceedings and he referred to the Enrolled Order allowing the Notice of withdrawal – Exhibit FMJ 1 at pages 170-173 dated 7th March, 2012. The issue is not the timely
withdrawal of the pending charges because the statutory requirement is that no proceedings should be pending when the application for extradition is made. The point of filing the application a decision was taken by the Attorney General to want to surrender the fugitive. The Appellant is wrong to think that it is only at the point of surrender that Section 3 (5) comes into play. It is activated on the filing of an application for extradition. The Attorney General would have decided on extraditing a fugitive before filing the application. The section applies in this case. The simple expectation is that the prosecuting authorities should work in a coordinated fashion complimenting themselves and not to be at cross purposes. The EFCC was already prosecuting the Respondent on charges similar to those he was being sought to be extradited to face in the United States of America and the simple thing would have been some sort of coordination by the EFCC and the office of the Attorney General of the Federation so that whatever was pending should be withdrawn before the filing of the application or the office of the Attorney to ensure that no proceedings were pending before filing the application. This was not done.
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.”
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, see AWOLOWO V. SHAGARI (1979) 6-9 S.C 37which held:
“It is a cardinal principle applicable to all kinds of statutes that you may not for any reason attach to a statutory provision a meaning which the words of that provision cannot reasonably bear. If they are capable of more than one meaning, then you can choose between those two meanings but beyond that you must not go.”
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. The law does not provide for a criminal trial that has been partly heard to be discontinued for the purpose of extradition. The action of the Appellant was panicky as if this country lacks the capacity to try the offences alleged. If prosecution at the federal level is well organized, this kind of situation cannot happen but when every prosecuting authority is acting solely, independently without seeking to collaborate towards an effective criminal administration of justice, then a clear provision like the one in issue becomes an albatross to the office of the Attorney General of the Federation.
This issue is resolved against the Appellant.
Whether the learned trial judge properly evaluated the evidence before him in holding that all authorities institute criminal proceedings with the express permission of the Attorney General of the Federation being the Chief Law Officer, by virtue of Sections 150 and 174 of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
Here, the Appellant submitted that contrary to the findings of the lower Court and pursuant to Section 174 (1) (b) of the 1999 Constitution, the power to institute a criminal proceeding is not exclusive to the Attorney General of a State or Federation, referring to FRN V. GEORGE OSAHON & ORS (2006) 5 NWLR (PT 973) 361. They further submitted that the EFCC can initiate a criminal proceeding without the express permission of the Attorney General which it did in this case and that it was not until the Attorney General became aware of the case, that he immediately directed that it be withdrawn.
However, the Respondent submitted that any criminal proceeding instituted by the EFCC is deemed to be by the Attorney General of the Federation. That by virtue of Section 150 and 174 of the 1999 Constitution, the Attorney General cannot be separated from the criminal proceeding embarked upon by any other authority as the Attorney General can takeover or discontinue the proceedings at any time. The Respondent also contended that if the Appellant sought to deny the content of its affidavit, it can only do so by filing another statement on oath and not by a mere denial. The Respondent submitted that it does not matter that the Attorney General was not aware of the criminal charge by the EFCC, the issue that there was a pending criminal charge against him is sufficient to oppose the extradition application in accordance with Section 3 (5) of the Extradition Act.
Let me commence by observing that this issue is inelegantly drafted and confusing. Evaluation of evidence is the duty of a trial Court and it is done in order to appropriate value to evidence before the Court. On the other hand, the prosecutory powers of the Attorney General of the Federation are governed principally by the Constitution and other legislations or statutes empowering the Attorney General to prosecute offences created by the said legislation. The issue of evaluating evidence in order to determine the extent of the powers of the Attorney General of the Federation cannot arise.
The Appellant is basically challenging the statement made by the Court below at pages 390- 240 of the record wherein he said:
“It is necessary to state at this juncture that by virtue of Section 150(1) of the Constitution of the Federal Republic of Nigeria 1999, the Attorney General of the Federation is acknowledged as the chief law officer of the Federation. And pursuant to Section 174 (1) of the same Constitution the Attorney General is empowered to institute any such criminal cases against any person before any Court of law in Nigeria, other than a Court Martial; to take over and continue any such criminal proceedings instituted or undertake by him or any other authority or person. what this means is that the Attorney-General of the Federation has overriding authority over all criminal proceedings in Nigeria and indeed no government establishment can validly undertake criminal prosecution without the express permission of the Attorney General. Judicial notice is taken that the EFCC for instance, has often been said to be an establishment under the office of the Attorney General of the Federation. Therefore, any criminal proceedings instituted or undertaken by the EFCC is deemed to be by the Attorney General of the Federation. It is hence not tenable to disclaim such criminal proceedings, as sought to be done by Mr. Hassan in this case. And to lend credence to the view just expressed, the Attorney General of the Federation intervened in the matter involving the Respondent ostensibly relying on Section 174(1) (c) of the 1999 Constitution.”
The powers of the Attorney General of the Federation provided in Section 150(1) and 174(1) of the 1999 Constitution states thus:
“150(1). There shall be an Attorney general of the Federation who shall be the chief law officer and Minister of the Government of the Federation.
174 (1). The Attorney General of the Federation shall have power-
(a) To institute and undertake criminal proceedings against any person before any Court of law in Nigeria, other than a Court – martial, in respect of any offence created by or under any Act of the National Assembly;
(b) To take over and continue any such criminal proceedings that may have been instituted by any other authority or person; and
(c) To discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.”
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, see FRN V. OSAHON (2006) 5 NWLR (PT. 973) 361. 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.
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, seeSections 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. I therefore disagree with the Court below that prosecutions initiated by the EFCC have the express authorization of the Attorney General of the Federation. They are empowered by the Act creating the agency to institute proceedings and like observed above, they can do also so in the name of the Attorney General of the Federation, the Federal Republic of Nigeria or in its name. In the case of the EFCC, it is statutorily provided that the Attorney General has representation in the EFCC and therefore, any proceedings initiated by EFCC would be deemed to have the knowledge and approval of the Attorney General because he is represented in EFCC. This is different from the powers of the Attorney General to take over and discontinue such proceedings like was done in this case.
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.
In this case, all that the Attorney General needed to do to comply with the Extradition Act was to have just requested any agency or any other authority to indicate if criminal proceedings were pending against the Respondent and to discontinue such before filing the application. This was not done and it creates the impression of an uncoordinated regime of criminal administration of criminal justice in this country, which is sad.
This issue is partially resolved in favour of the Appellant.
Whether the learned trial judge judicially and judiciously considered the Appellant’s application before him when he held that the Applicant is in breach of the Extradition Act, the Respondent haven been in detention for more than two months.
The Appellant submitted that the procedure stipulated under Sections 8 (5), 8 (6), 8 (7), 6 (3), 5 (6), 5 (7) andSection 14 of the Extradition Act relied upon by the lower Court is not applicable in this case. According to the Appellant, as soon as it received the extradition request from the United States, it timely filed the extradition application at the Federal High Court. The Appellant also submitted that the Respondent’s arrest and subsequent prosecution by the EFCC was not in connection with the extradition request but for other offences. That the Respondent was not arrested on a provisional warrant nor was he brought or remanded before a magistrate. The Appellant therefore submitted that the Court erred when he held that the Appellant was in breach of the Extradition Act.
On the other hand, the Respondent contended that the lower Court was justified in discharging him since he had been in detention for more than two months after his arrest up till the time the judgment was delivered, without being granted bail or brought before any magistrate or Court of law contrary to Section 7, 8, 9 and 10 of the Extradition Act. The Respondent further submitted that having dismissed the Extradition application, the order of discharge was a consequential order which the lower Court was empowered to make.
The Appellant is challenging the Court below for applying the provisions of Section 8(5), (6), (7) and 14 of the Extradition Act which provides as follows:
“S. 8(5). A fugitive criminal arrested on a provisional warrant issued under this section shall be brought before a magistrate as soon as is practicable after he is so arrested, and the magistrate-
a) shall remand him, either in custody or on bail, pending receipt from the Attorney-General of an order under Section 6 of this Act signifying that a request for his surrender has been received, or an order under Subsection (3) of this section for the cancellation of the warrant and the release of the fugitive; and
b) shall forthwith inform the Attorney-General of the fact that the fugitive has been arrested and remanded as aforesaid, and for the purposes of paragraph (a)of this subsection the magistrate shall have the same powers of remand as if the fugitive were brought before him charged with an offence committed within his jurisdiction.
(6) Without prejudice to Section 14 of this Act, if within the period of thirty days beginning with the day on which he was arrested, no such order as is mentioned in Subsection (5)(a) of this section is received from the Attorney-General, the fugitive criminal shall be released at the end of that period.
(7) The release of any person under Subsection (3) or (6) of this section shall not prejudice his subsequent arrest and surrender if a request for his surrender is afterwards made.
S. 14. If it appears to the Attorney-General at any time, in the case of any fugitive criminal who is on remand or awaiting his surrender under this Act –
a) that his surrender is precluded by this Act or by the extradition agreement (if any) in force between Nigeria and the country seeking his surrender; or
b) that a request for his surrender is not forthcoming or, where such a request has been made, that it is not being proceeded with, the Attorney-General may order all proceedings for the surrender of that fugitive to the country in question to be discontinued and the fugitive, if in custody, to be released.”
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. Secondly, the EFCC also does not have the powers to initiate proceedings against the fugitive under the Extradition Act. All what took place before the Ondo State High were offences triable by the Court. Therefore, the fugitive was not arrested and detained pursuant to the provisions of the Extradition Act. The Court below therefore erred to assume that the fugitive was first arrested pursuant to the Extradition Act. The proceedings under the Act is the one before the Federal High Court. Furthermore, the Respondent was not remanded pursuant to the 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.
I resolve this issue in favour of the Appellant.
Flowing from above, the appeal fails and is hereby dismissed, the resolution of issue 2 partially and issue 3 in favour of the Appellant notwithstanding. The main thrust of the appeal fails and it is hereby dismissed. The judgment of the trial Court delivered on the 21st day of January, 2011 by HON. JUSTICE L.A. OKUNNI is upheld.
No order as to costs.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: In the lead judgment just delivered by my Lord YARGATA BYENCHIT NIMPAR JCA, with which I am in complete agreement, having been afforded the priviledge of a preview of the draft, the relevant issues have been remarkably considered and admirably resolved. I have nothing more to add.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have before now read the judgment of my learned brother, YARGATA BYENCHIT NIMPAR, JCA just delivered. I agree with him that the appeal lacks merit and ought to be dismissed. 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.
See C.C.T. & C.S. LTD v. EKPO (2008) 6 NWLR (PT. 1083) 362 SC. In AMAECHI v. INEC (2008) 5 NWLR (PT 1080) 227 SC; (2008) LPELR 446 (SC), the Supreme Court of Nigeria, per MOHAMMED, JSC held:
“It is certainly not the duty of a Judge to interprete a statute to avoid its consequence. The consequences of a statute are those of the legislature, not the Judge. A Judge who regiments himself to the consequences of a statute is moving outside the domain of statutory interpretation. He has by that conduct engaged himself in morality which may be against the tenor of the statute and therefore not within his judicial power.”
In KRAUS THOMPSON ORG. v. N.I.P.S.S (2004) 17 NWLR (PT 901) 44; (2004) LPELR – 171 (SC) pp. 11 – 12, paras G – B, the Apex Court, per TOBI, JSC (of blessed memory) reiterated thus:
“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.”
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.
In the light of the above, I entirely agree with the reasoning and conclusion reached in the leading judgment and I also adopt same as mine. Accordingly, I also dismiss the appeal and abide by the consequential order(s) made in the leading judgment.
A. A. OLATUNJI-For Respondent