A.g Of The Federation V. Anuebunwa (2022)

LAWGLOBAL HUB Lead Judgment Report

HELEN MORONKEJI OGUNWUMIJU, J.S.C. 

Pursuant to the Extradition Act, Cap E25, Laws of the Federation of Nigeria 2004, 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 trial Court, 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.

On 1/6/2020, the Federal High Court Coram Hon. Justice I.E. Ekwo had 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 for criminal charges in that country.

​The Respondent appealed against the order of extradition by notice of appeal filed on 10/6/2020. The Court of Appeal, Abuja Division Coram: Stephen Jonah Adah, Mohammed Baba Idris, and Mohammed Mustapha JJCA held by the majority decision of the Court of Appeal, delivered by M.B. Idris and Mohammed Mustapha JJCA with Stephen Jonah Adah JCA dissenting, that the trial Court did not appreciate the issues in controversy having failed to make findings of fact on the issues joined on 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. Notice of appeal filed on 18/01/2021 and cross-appeal filed on 7/10/2021.

The following facts led to this appeal.

The Appellant herein, as Plaintiff at the trial Court, filed an application for the extradition of the Respondent to the United States of America (USA) to answer to an indictment in the District Court of Southern District of New York.

The application was supported by two affidavits deposed to by Stephen Fullington and Andrew K. Chan respectively, both of whom were stated to be operatives of the Federal Bureau of Investigation (FBI) in the USA. Also attached to the affidavit of Stephen Fullington were photographs generated from a computer in the custody of the deponents which were marked Exhibits D1-D4. The Appellant relied heavily on these affidavits to ground its application for the extradition of the Respondent to the (USA).

In response to the application, the Respondent (then in custody) filed a counter-affidavit deposed to by Chinenye Anuebunwa, his wife. The Respondent also filed a preliminary objection challenging the admissibility of various paragraphs of the affidavit of Stephen Fullington and exhibits attached thereto for not complying with Section 84 of the Evidence Act 2011.

The Respondent had contended in his counter-affidavit filed at the trial Court (at page 205 of the Record) that he is not the fugitive for whom a warrant of arrest was issued by the United States of America, thus raising a defence of mistaken identity, by stating, amongst other things, that he had never been to the USA and that he is not a black male with black hair and brown eyes as described in the extradition application.

The Appellant appealed against the majority decision of the Court below on three grounds from which 3 (three) issues were formulated by Akutah Pius Ukeyima, Chief State Counsel. They are set out below:

i. 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)

ii. 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)

iii. 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).

The Respondent in the brief settled by Chikaosolu Ojukwu Esq identified three issues for determination as follows: