Attorney General Of The Federation Vs Olaniyi Jones (2017)

LAWGLOBAL HUB Lead Judgment Report

YARGATA BYENCHIT NIMPAR

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 The Appellant contended that as at the time the application was ripe for hearing, the existing charge had been withdrawn.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 all 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 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.

ISSUE ONE

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.

RESOLUTION