Daniel Orhiunu V. Federal Republic of Nigeria (2004)

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GALADIMA, J.C.A.

This is a consolidated appeal against the interlocutory decisions of the Federal High Court, Lagos, delivered by Shuaibu, J. on the 25/11/2002 and 19/2/2003 refusing to strike out the substantive application of the respondent forthe extradition of the appellant to the United States of America.

On 29/7/2002, the Honourable Attorney-General of the Federation, in his application, asked the Federal High Court to deal with the request of the United States of America for the offence of health care fraud, aiding and abetting by the appellant. He was sentenced by Judge Edward C. Prado on 11/10/2001 in absentia at the United States District Court, for the Western District of Texas to 87 months, 3 years supervised released, $1,061,110.55 in restitution and a special assessment of $300.

When the matter came up for the first time before Shuaibu, J. on 28/10/ 2002, the appellant through his counsel raised a preliminary objection challenging the jurisdiction and competence of the Federal High Court to entertain the proceedings and a consequential order dismissing the request for his extradition to the United States of America.

In his considered ruling 25/11/2002, the learned trial Judge held that the Federal High Court has exclusive jurisdiction in extradition matters and consequently dismissed the appellant’s preliminary objection. Similarly, on 19/2/2003 he also ruled in the appellant’s second objection, dismissing his contention that he does not fall within the contemplation of Extradition Act Cap. 125 Laws of the Federation of Nigeria (1990) herein after referred to as “the Extradiction Act” not being a fugitive criminal as envisaged by the combined effect of sections 3-9 and section 21(1) of the Extradiction Act.

Pursuant to the appellant’s application, this Court by its order, dated 10/7/2003, consolidated the appeal vide Notice of Appeal filed on 25/3/2003 containing three grounds against the decision of 25/11/2002 and the appeal vide notice of appeal filed on 4/3/2003 containing four grounds against the decision of 19/2/2003.

The issues proffered by the appellant for determination from the grounds of appeal, is consolidated, read as follows:

“4.1. Whether having regard to the wordings of section 251 (1) (i) of the Constitution of the Federal Republic of Nigeria 1999, the Federal High Court can be said to be conferred with jurisdiction or exclusive jurisdiction in respect of extradition of Nigerians from Nigeria to foreign countries?

4.2. Whether the appellant can be said to be a fugitive Criminal within the meaning set out in the Extradition Act Cap. 15, Laws of the Federation of Nigeria, 1990, as to make him eligible for extradition from Nigeria to the United States of America?”

The two issues identified in the respondent’s brief for our determination which are similar to those of the appellants, are as follows:

“2.1. Whether the Federal High Court is conferred with jurisdiction to entertain extradition matters under section 251 (1) (i) of the Constitution of the Federal Republic of Nigeria, 1999?

2.2. Whether the appellant can be said to be a fugitive Criminal within the definition of section 21 of the Extradition Act Cap. 125 Laws of the Federation of Nigeria, 1990?”

I have carefully considered the issues set out for our determination by the respective parties. The issues set out by the respondent’s appeal to me is quite apt and direct to the grounds in the consolidated appeal. It is on these two issues the merit of this appeal will be considered.

When this appeal came before us for argument on 18/5/2004 Mr. Fashanu, learned Senior Advocate for the appellant adopted the appellant’s brief of argument.