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:

1. Whether the Court below was right in not striking out issue 1 as formulated by the Respondent as Appellant in the Court below? (Distilled from ground 1 of the Appellant’s Notice of Appeal)
2. Whether the Court below was right to have held that Section 84 of the Evidence Act, 2011 (as amended) applies to extradition proceedings? (Distilled from ground 2 of the Appellant’s Notice of Appeal)
3. 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 made by the trial Judge? (Distilled from ground 3 of the Appellant’s Notice of Appeal).

At the hearing of the appeal in this Court, the Respondent raised a preliminary objection on certain grounds as stated below:

a. AN ORDER of this Honourable Court striking out this appeal in its entirety for want of jurisdiction.

OR IN THE ALTERNATIVE.

b. AN ORDER of this Honourable Court striking out Ground 1 of the Notice of Appeal, same is incompetent.

c. AN ORDER of this Honourable Court striking out Ground 2 of the Notice of Appeal, same being academic, argumentative, vague and conclusive.

d. AN ORDER of this Honourable Court striking out Ground 3 of the Notice of Appeal, same being a ground of mixed law and facts, for which no leave of Court was sought and obtained.

e. AN ORDER striking out issue (i), (ii) and (iii) distilled from Grounds 1, 2 and 3 of the Appellant’s Notice of Appeal and all arguments connected thereto.

f. AND FOR SUCH FURTHER or other Order(s) as this Honourable Court may deem fit to make in the circumstances of this Appeal.

The preliminary objections are predicated on the following grounds:

1. That the Extradition Treaty between the United States of America and Great Britain, signed at London, on 22nd December, 1931, which is the legal basis of the Applicant’s application for the Respondent’s extradition filed at the trial Court is not enforceable by or against any authority and/or person throughout the length and breadth of the Federal Republic of Nigeria.
2. That by virtue of Section 12 of the 1999 Constitution (as amended), the trial High Court was not possessed of the requisite jurisdiction to either construe or apply the provisions of the Extradition Treaty between the United State of America and Great Britain, signed at London, on 22nd December, 1931 in this case, thereby rendering all the proceedings and judgments built on the unincorporated treaty a nullity.
3. That the service of the notice of appeal in this appeal is patently defective, thereby robbing this Honourable Court of the jurisdiction to entertain this appeal.
4. That Ground 1 of the Notice of Appeal dated 18/01/2021 but filed on 19/1/2021 is incompetent, as it does not form part of the decision of the lower Court appealed against by the Appellant i.e. “part of the decision regarding the applicability of Section 84(4) of the Evidence Act, 2011 on the admissibility of annexures to an extradition package; propriety of the retrial order made by the Court of Appeal in the Appeal”.
5. That Ground 1 is predicated on a finding raised suo motu in the minority judgment of the Court of Appeal which is in favour of the Appellant, as the Appellant did not challenge the grounds of appeal at the Court or issue distilled therefrom.
6. That Ground 1 of the Appellant’s Notice of Appeal, as to the competence of issue 1 distilled by the Respondent (as Appellant at the lower Court of Appeal) from Ground(iv) of its Notice of Appeal, was never raised by the Appellant at the lower Court, and as such is a fresh issue for which leave of this Honourable Court ought to have been sought and obtained by the Appellant.
7. That Ground 2 of the Notice of Appeal is incompetent, as same is academic, hypothetical, vague, argumentative and conclusive.
8. That Ground 3 of the Appellant’s Notice of Appeal is a ground of mixed law and facts and no leave of this Honourable Court was sought and obtained to raise same.
9. That the entirety of the Appellant’s appeal ought to be struck out, as Grounds 1,2 and 3 of the Notice of Appeal and issues (i), (ii) and (iii) distilled therefrom are incompetent.

I will treat the preliminary objection first as some grounds challenge the jurisdiction of this Court. Learned Respondent’s Counsel further crystallized the issues in controversy in the objection into three and set them out as follows:

a. Whether, having regard to the provisions of Section 12 of the 1999 Constitution of the Federal Republic of Nigeria, this Honourable Court ought not to strike out and/or dismiss this appeal and set aside all prior proceedings and judgments for want of jurisdiction.

b. Whether this Honourable Court has the jurisdiction to entertain this appeal, having regard to the defective service of the notice of appeal therein?

c. Whether or not Grounds 1, 2,3 and issues (i), (ii) and (iii) distilled therefrom ought to be struck out for being incompetent?

Learned Appellant’s counsel in the reply brief also identified similar issues for determination. They are set out below:

i. Whether the Extradition Treaty between the United State of America and United Kingdom 1931 is applicable to Nigeria as an existing law.

ii. Whether in the circumstance service of Notice of appeal on Respondent’s Counsel is proper service.

iii. Whether or not ground 1, 2 & 3 of the Notice of appeal is competent to sustain this appeal.

I will adopt the issues as simply expressed by the learned Appellant’s Counsel. In respect of the first head of objection as raised by learned Respondent’s counsel, it was argued for the Respondent that the basis of the application before the trial Federal High Court giving rise to this appeal is unenforceable in Nigeria. Counsel submitted that the said Extradition Treaty between the USA and Great Britain on 22/12/31 has no force of law in Nigeria and cannot be an instrument for enforcement by any authority and person throughout Nigeria having regard to Section 12(1) of the 1999 Constitution (as altered). Counsel argued that the treaty referred to has not been domesticated by an Act of the National Assembly and is thus unenforceable in Nigeria. Counsel urged the Court to strike out the proceedings from inception as the trial Court is devoid of jurisdiction. Counsel cited Abacha v. Fawehinmi (2000) 6 NWLR Pt. 660 Pg. 340, NZE BERNARD CHIGBU v. TONIMAS NIGERIA LTD & ANOR (2006) 4 SCNJ 262, A (FC) & ORS v. SECRETARY OF STATE for the HOME DEPARTMENT (2005) UKHL 71, DIGGS v. SCHULTZ 470 F. 2d 461, Matari & Ors v. Dangaladima & Ors (1993) 3 NWLR Pt. 281 Pg.66 and Att. Gen. ONDO v. Att. Gen. EKITI (2001) LPELR-812 (SC) on jurisdiction and interpretation of Statutes.

​

Learned Appellant’s counsel in reply submitted that Section 251(1)(i) and (3) of the 1999 Constitution (as altered) confers the Federal High Court with jurisdiction to entertain extradition proceedings. Counsel submitted that by Section 315 (1)(a) and 4(b) of the 1999 Constitution (as altered), the Extradition Treaty between USA and UK of 1931 is applicable in Nigeria pursuant to Legal Notice 33 of 1967. Section 274 (4)(b) of the 1979 Constitution is in pari materia with Section 315 (4)(b) and the Courts have held that the Public Officers and other persons (forfeiture of Assets) Order No. 7 of 1977 and Hague Rule of 1924 being a pre-1960 Treaty/Convention are applicable to Nigeria prior to 1/10/1960 and thereafter by virtue of Section 12 of the 1999 Constitution. Counsel cited ALH MADI MOHAMMED ABUBAKAR v. BEBEJI OIL and ALLIED PRODUCTS LTD & 2 ORS (2007) 18 NWLR Pt. 1066 Pg. 319 at 384; JFS INVESTMENT LTD v. BRAWAL LINE LTD & OR (2010) LPELR-1610 (SC); BRITISH AIRWAYS v. ATOYEBI (2014) LPELR-23120 (SC) in support of the argument that the Extradition treaty between USA and UK in 1931 is an extant law and is binding on Nigeria.

OPINION ON ISSUE ONE OF PRELIMINARY OBJECTION.

The Federal High Court has exclusive jurisdiction by virtue of Section 251(1)(i) & (3) of the 1999 Constitution (as altered) to entertain extradition proceedings.

The Appellant as applicants at the trial Court had premised the request for extradition of the Respondent to the USA on Article 3(18) of the Extradition Treaty between the USA and Great Britain signed in London on 22/12/1931 which it argued is still binding on Nigeria by virtue of Section 315(1)(a) and 4(b) of the 1999 Constitution.

The said provisions are set out below for ease of reference:

“S.315(1)(a) Subject to the provisions of this Constitution, an existing law shall have effect with such modification as may be necessary to bring it into conformity with the provisions of this Constitution and shall be deemed to be –

a) An Act of the National Assembly to the extent that it is a law with respect to any matter on which the National Assembly is empowered by this Constitution to make law;

(4) in this section, the following expressions have the meanings assigned to them respectively.

(b) “existing law” means any law and includes any rule of law or any enactment or instrument whatsoever which is in force immediately before the date when this section comes into force after that date.”

Extradition treaties that are directly relevant to the territory of Nigeria fall into two distinct periods in time. On the one hand, there are pre-independence treaties entered into by the British colonial administration. On the other hand, there are post-independence treaties entered into by Nigeria as a sovereign State.

The applicability of pre-independence treaties to Nigeria derives from a devolution of treaty agreement between Nigeria and Britain. On October 1, 1960, the territories formerly comprising of the British Colony and Protectorate of Nigeria attained sovereign independence as a State known as the Federation of Nigeria. Using the instrumentality of an exchange of letters, dated October 1, 1960, between the High Commissioner for the United Kingdom in the Federation of Nigeria and the Prime Minister of the Federation of Nigeria, Nigeria agreed to assume, from October 1, 1960, all obligations and responsibilities of the United Kingdom which arise from any valid international instrument in so far as such instruments may be held to have application to or in respect of Nigeria. These letters together embody a treaty. It is instructive to emphasize that a treaty can be by exchange of letters or may be embodied in several documents such as the October 1, 1960 letters exchanged between Nigeria and the United Kingdom. Indeed, the Vienna Convention on the Law of Treaties clearly recognizes that a treaty may be embodied in a single instrument or two or more instruments. The nomenclature of such instruments are not prejudicial to the treaty they create.

By virtue of the Nigeria International Rights and Obligations Treaty (created by exchange of letters), Nigeria is bound by pre-1960 extradition treaties relating to the territory of Nigeria but entered into between the United Kingdom and other States. However, Nigeria has indicated that certain pre-1960 extradition treaties are no longer in force in respect of the country.

​Generally, extradition treaties between nations are executory in character and are binding on domestic Courts. However, for extradition treaties to be justiciable before Nigerian Courts and implemented by the executive arm of government, they must be domesticated by means of an order made pursuant to the Extradition Act 2004. The Extradition Act categorically states that:

Where a treaty or other agreement (in this Act referred to as an extradition agreement) has been made by Nigeria with any other country for the surrender, by each country to the other, of persons wanted for prosecution or punishment, the President may by order published in the Federal Gazette apply this Act to that country.

Therefore, whether a particular pre-1960 treaty is in force or not, the Extradition Act requires an order to be made regarding the treaty in the Federal Gazette before the treaty can be implemented. In the event that an extradition treaty has not been proclaimed by way of an order published in the Federal Gazette, the treaty will not be justiciable in Nigerian Courts. This does not mean that the treaty is no longer in force, nor does it mean that Nigeria’s obligations under the treaty have been vacated. It only means that Nigeria has not taken the municipal steps for implementing the treaty. The extradition treaties between Great Britain and Liberia signed on 16 December, 1892 and the United States of America signed on 22 December, 1931 have been recognized by Nigeria as binding on it, subject to certain modifications. The respective orders have been issued on these two treaties and the Extradition Act recognizes the orders made in relation to the United States of America and Liberia.

By the Extradition Decree 1966 No. 87 known as Extradition (United States of America) Order 1967, Section 1 states that the Order shall apply throughout Nigeria. Section 2 of the said Decree provides in Schedule 1(b) that the Extradition Treaty shall apply to the territory of the Federal Republic of Nigeria which means the Federal Territory and the Regions. In Article 8, the words “the territory of this Britannic Majesty” shall be substituted with the word “Nigeria” Schedule 2 states categorically that the Extradition Treaty between the USA and Great Britain signed at London on 22/12/1931 is recognized as binding on the Federal Republic of Nigeria.

In the published laws of the Federal Republic of Nigeria, 2004, the Extradition Act was published as Chapter E25. The first schedule to that Act provides that Section 1 thereof apply to Liberia and the USA by Legal Notice 32 and 33 of 1967 respectively.

​My Lords, it is clear that the argument of learned Respondent’s counsel that the 1931 treaty has not been domesticated is erroneous and all the case law cited to ground same are irrelevant in the circumstances of this case. As stated in Abacha v. Fawehinmi (2006) 6 NWLR Pt.660 at Pg.340 by this Court, per Ogundare, JSC:

“Before its enactment into law by National Assembly, an international treaty has no such force of law as to make its provisions justiciable in our Courts. See the recent decision of the Privy Council in Higgs & Anor v. Minister of National Security & Ors. The Times of December 23, 1999 were it was held that-

“In the law of England and the Bahamas, the right to enter into treaties was one of the surviving prerogative powers of the Crown Treaties formed no part of domestic law unless enacted by the legislature. Domestic Courts had no jurisdiction to construe or apply a treaty, nor could unincorporated treaties change the law of the land. They had no effect upon citizens right and duties in common or statute law…” in my respectful view, I think the above passage represents the correct position of the law, not only in England, but in Nigeria as well.”

Thus, any treaty entered into must be domesticated. The treaty between USA and Great Britain in 1931 was applicable to Nigeria because as at 1931, Nigeria was part of the British Empire. However, the Extradition Decree of 1967 and the Extradition Act 2004, Cap E25 LAWS OF THE FEDERATION as published has satisfied the requirements of Section 315 (4) b of the 1999 Constitution as (altered) being an “existing law” in force immediately before the coming into effect of the 1999 Constitution. This head of objection is misconceived as the trial Court had jurisdiction to consider and determine the application.

OBJECTION 2

The next head of objection is the submission that the trial Court lacked jurisdiction since the notice of appeal is defective and should be struck out.

Learned Respondent’s counsel argued that the Appellant’s Counsel in breach of Order 2 Rule 3(1)(b) of the Supreme Court Rules did not serve the notice of appeal personally on the Respondent. Counsel submitted that the effect of failure to personally serve an originating process is that it robs the Court of jurisdiction to entertain the suit and the resulting appeal. The Appellant’s counsel argued that the Respondent had instructed counsel to prosecute his appeal while in detention at the High Court. Counsel argued that the Respondent’s position is mala fide in trying to fault service on his counsel. Counsel argued that the Respondent deliberately disengaged Amos, Adenike & Co. The Respondent had thereafter been personally served on 10/2/2021 and was thus adequately notified of the pendency of the appeal in this Court.

OPINION ON OBJECTION 2

My Lords, generally, it is a well settled position of the law that defective service of a notice of appeal on the Respondent robs the Court of jurisdiction. Order 2 Rule (1)(b) provides for personal service of the notice of appeal to the Supreme Court on the Respondent.

The important consideration here which meets the ends of law and justice is that the Respondent who has participated fully in this appeal since it was instituted in this Court in February, 2021 must be that the Court is satisfied that the Respondent has in fact been served. The Respondent endorsed the address of his counsel as shown in the record of appeal. The Respondent acknowledged service through his counsel in this matter at the trial Court and the Court below. The Respondent instructed Messer Amos Adenike & Co., to prosecute his appeal and the address of counsel served as address for service on the Respondent as he was in detention at Medium Security Correctional Center, Kuje, pursuant to the order of the trial Court. In the first instance, I agree that the Respondent’s new counsel should have notified the Court and parties of the change of counsel and address in accordance with the extant rules of Court and not hold the Appellant at fault for endorsing Messer Amos Adenike & Co address for service of the processes meant for him.

My Lords, the circumstances of this case are peculiar-. When the Appellant realized that Amos, Adenike & Co had been disengaged by letter dated 08/02/2021, the Appellant in abundance of caution served the Notice and record of appeal on the Respondent on 10/02/2021. Thus, the complaint here is factually incorrect. The technical or procedural hitch which could have led to procedural incompetence of this Court to hear the appeal was cured. Where a Court has substantive jurisdiction, as in this appeal, but there is at one-point lack of procedural competence, such incompetence can be waived by the Court or the Court can allow the party in disobedience to cure same at any time in the proceedings. See MOBIL PRODUCING v. LASEPA (2002) 18 NWLR Pt. 786 Pg.1 at 32, ABUBAKAR v. NASAMU (2012) 17 NWLR Pt. 1330 Pg. 407 at 593. In any event, there was in my view proper service of the notice of appeal pursuant to the proviso to Order 2 Rule 1(b) of the Supreme Court Rules.

OBJECTION 3

Learned Appellant’s counsel argued that the 3 grounds of appeal and the issues distilled therefrom are incompetent. Counsel complained that Ground 1 and the issue distilled therefrom is in excess of the ambit of the ground. Counsel also complained that grounds 2 & 3 of the notice of appeal are incompetent being grounds of mixed law and facts for which no leave had been sought or obtained. Counsel cited NIKAGBATE v. OPAYE & ANOR (2018) LPELR-43704 (SC), SHITTU v. PEUGEOT AUTOMOBILE LTD (2018) LPELR-54377(SC). Counsel also insists that Ground 2 is vague and academic.

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Learned Appellant’s Counsel replied that this appeal emanated from an originating summons based on affidavit evidence. The law is settled that grounds on an inference of facts and or law are error of law which do not require the leave of Court being sought and obtained. That the essence of grounds of appeal is to notify the Respondent of the grudges of the Appellant against the judgment and halt surprises on parties. Counsel cited OGBORU & ANOR v. OKOWA & ORS (2016) LPELR-48350 (SC). Counsel submitted that all grounds of appeal are competent.

OPINION ON OBJECTION 3

I have considered the grounds of appeal complained about. The Respondent’s contention at paragraphs 3.42 – 3.55 of his brief is not apposite as grounds 1, 2 & 3 are indicative of errors of law Which do not require leave of Court as erroneously argued by the Respondent. It is evident that the Respondent misconceives ground 1, 2 & 3 to relate to issue of facts notwithstanding that the particulars were very explicit as to the error of law.

In MMA INC & Anor v. NMA (2012) LPELR-20616 (SC) per Suleiman Galadima JSC reiterated this principle aptly thus:

“… Five particular classes of errors of law, which when addressed by the grounds can be categorized as grounds of law have been set out in the decision of this Court in Comex Ltd v. Nab Ltd (1997) 3 NWLR (Pt.643) at 656- 657, while affirming the dictum of Nnaemeka-Agu JSC of blessed memory) in Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) 718 at 744-745, to wit:

1. It is an error in law if the adjudicating Tribunal took into account some wrong criteria in reaching its conclusion or applied some wrong criteria in reaching its conclusion or applied some wrong standard of proof or; if although applying the correct criteria, it gave wrong weight to one or more of the relevant factors, see O’KELLY V. TRUSTHOUSE FORTE PLC. 19833 ALL E.R at pages 456.
2. Several issues that can be raised on legal interpretation of deeds, documents, terms of art, words or phrases and inferences drawn therefrom are grounds of law: OGBECHIE v. ONOCHIE (NO.1) Supra at pp. 491-492.
3. Where a ground deals merely with a matter of inference, even if it be an inference of fact, a ground framed on it is a ground of law; provided it is limited to admitted or proved and accepted facts.

EDWARDS v. BAIRSTOW(supra) at p.55 H.L. For many years, it has been recognized that inferences to be drawn from a set of proved or undisputed facts, as distinct from primary facts, are matters upon which an appellate Court is as competent as the Court of trial. See BENMAX v. AUSTIN MOTORS Co. Ltd. 1949 All E.R 326 at P. 327.

4. Where a Tribunal states the law on a point wrongly, it commits an error in law.
5. Lastly I should mention one class of grounds of law which lead the deceptive appearance of grounds of fact id est where the complaint is that there was no evidence upon which a finding or decision was based. This is regarded as a ground of law, on the premises that in a jury trial there would have been no evidence to go to the jury. Before a Judge sitting with a jury could have left a case to the jury there ought to have been more than scintilla of evidence. So, for this rather historical reason, a ground of appeal complaining that there was no evidence, or no admissible evidence upon which a decision or finding was based has always been regarded as a ground of law.”

I am of the view that the grounds of appeal raised by the Appellant and the issues distilled therefrom are grounds of law. In particular, whether the right legal parameters were used to decide the issue of the identity of the Respondent. I am of the view that none of the heads of objection are competent and they are overruled and hereby dismissed.

Now, to the crux of this appeal. A careful look at all issues formulated by both sides show they are essentially the same but differently couched and prioritized. I will determine the live and relevant issues in this appeal by considering issues 1 & 2 as set out by the Appellant.

ISSUE ONE

Learned Appellant’s counsel argued that the majority decision of the Court below examined the import of Sections 1, 2 and 3 of the Evidence Act Cap E14 LFN 2004 to determine the appeal but the Court below erred in law to hold that Section 17 of the Extradition Act did not preclude the mandatory Application of Section 84 of the Evidence Act (which relates to computer generated evidence, which essence is to certify the manner in which such evidence is produced) in the circumstance. Counsel insisted that Section 17 of the Extradition Act being a specific enactment that relates to the admissibility of duly authenticated foreign documents (Extradition package) to an extradition proceeding clearly falls under the exceptions provided under Section 2 of the Evidence Act in relation to the application of Section 84 of the Evidence Act as the Extradition package did not emanate from Nigeria.

Learned Appellant’s counsel argued that the main purpose of Section 84 of the Evidence Act is to ascertain the authenticity of documents and the integrity of the procedure used in producing same, while Section 17 of the Extradition Act specifically deals with same authentication in relation to foreign documents attached to an extradition package. Counsel argued that the Court below did not appreciate the import of Sections 1, 2 & 3 of the Evidence Act viz-a-viz the provision of Section 17 of the Extradition Act Cap E25 LFN 2004 as it relates to admissibility/authentication of foreign documents in support of Extradition request which clearly puts no further burden on the Hon. Attorney General of the Federation to subject foreign documents to domestic processes.

Learned counsel submitted that duly authenticated documents emanating from a foreign or requesting country is prima facie admissible without further rigorous proof.

On this issue, Learned Respondent’s argued that as rightly found by the lower Court, the documents attached as D1, D2, D3 & D4 to the affidavit of STEPHEN FULLINGTON in support of the Appellant’s extradition request (at pages 59-66 of the record) are inadmissible, by virtue of Section 84(4) of the Evidence Act 2011. Learned Counsel submitted vigorously that Section 84 of the Evidence Act governs the admissibility of all documents generated and/or produced by means of a computer, and such documents must comply with the conditions enunciated therein to be admissible in any proceeding. Counsel cited KUBOR v. DICKSON (2012) LPELR-9817 (SC).

Learned Respondent’s counsel argued further that the Appellant’s contention that the lower Court was wrong when it held that Section 17 of the Extradition Act does not exclude the specific provision of Section 84 of the Evidence Act in relation to its documents marked as attachments D1, D2, D3 and D4 in this case is misconceived.

Counsel submitted that Section 84 of the Evidence Act was specifically enacted to provide for the admissibility of all documents produced by a computer and therefore takes precedence over any pre-existing general provision as to the admissibility of documents in judicial proceedings.

Learned Respondent’s counsel further submitted that, by Section 34(1) (b)(i) &(ii) of the Evidence Act, the documents have no probative value in that the United State of America (USA) authorities having admitted to hacking the Respondent’s purported email did not show the order of the USA Court upon which it did so and therefore the evidence is inadmissible.

OPINION

My Lords, extradition of a citizen by the country of origin or a host country obligation arising from multilateral and bilateral international treaties between countries is a special (quasi-criminal) proceeding which is substantially regulated by the Extradition Act Cap E25 LFN 2004, Extradition (Amendment) Act, 2018 and Federal High Court (Extradition Proceedings) Rules 2015.

A lot of energy has been expended by both sides on the issue of the applicability of Section 84 of the Evidence Act 2011 to Extradition proceedings. Section 84 (1) and (2) of the Evidence Act provides as follows:

(1) In any proceeding, a statement contained in a document produced by a computer shall be admissible as evidence of any fact stated in it of which direct oral evidence would be admissible, if it is shown that the conditions in Subsection (2) of this Section are satisfied in relation to the statement and computer in question.

(2) The conditions referred to in Subsection (1) of this Section are:

(a) That the document containing the statement was produced by the computer during a period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period, whether for profit or not, by anybody, whether corporate or not, or by any individual;

(b) That over that period there was regularly supplied to the computer in the ordinary course of those activities information of the kind contained in the statement or of the kind from which the information so contained is derived;

(c) That throughout the material part of that period the computer was operating properly or, if not, that in any respect in which it was not operating properly or was out of operation during that part of that period was not such as to affect the production of the document or the accuracy of its contents; and

(d) That the information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary course of those activities.

The correct interpretation to be given to Section 84 of the Evidence Act, where electronically generated document is sought to be tendered is that such electronically generated evidence must be certified and must comply with the preconditions laid down in Section 84(2).

It appears that the documents in question do not even fall within the scope of Section 84 of the Evidence Act. The documents relied upon by the Appellant are as follows:

i. Original copy of Letter of Certification with the seal of the United States of America’s Department of State dated 18th day of October, 2017 signed by the Secretary of State of the United States Rex W. Tillerson.

ii. Original copy of Letter of Certification with the seal of the United State of America’s Department of State dated 6th day of October, 2017 signed by the Director/Deputy Director, Office of Internal Affairs, Criminal Division, Department of Justice and duly commissioned and qualified in the presence of the Attorney General of the United States – Jefferson B. Sessions.

iii. Original copy of a letter of Certification, dated 6th October, 2017, certifying the affidavit and all attached documents in support of the request for the extradition of the Respondent and

iv. Original copy of affidavit in support of request for the extradition of the Respondent and duly sworn to by Assistant U.S. Attorney, United States Attorney’s Office for the Southern District of New York – Adrew K. Chan.

These documents are three original letters and one original affidavit. These are not computer-generated documents. The wordings of Section 84 of the Evidence Act 2011 do not contemplate that before an original official letter is tendered and admitted in evidence, the party tendering same must satisfy the conditions in the provision. Neither does the provision envisage same where the admissibility of an original affidavit is in issue. It would be ridiculous to assume that a document which was typed using a computer is a computer-generated document. For example, it is the algorithm or data imputed by a Bank Officer into the bank’s data base that generates the various information on the statement of account of a customer. That Bank Statement is a computer-generated document which has to be certified by the officer to ensure that no one illegally or without authorization tampered with the source data as officially imputed in the computer. Also, the certification must include that the computer was operational or in good working order when the document was generated.

I cite with approval the book by S.T. Hons “Law of Evidence in Nigeria” (Based on the Nigerian Evidence Act, 2011) VOL. 1, 2nd Edition particularly Pages 468-469 wherein the learned Senior Advocate and author opined as follows:

“Be it noted that the legislature, in enacting the various sections of the Act that deal with admissibility of computer evidence under the 2011 Act never intended this practical result. For instance, and as will be shown hereunder, Section 84 of the Act, which deals generally with admissibility of computer generated evidence, was lifted directly from Section 65B of the Indian Evidence Act, 1872, as amended and substantially from Section 69 of the English Police and Criminal Evidence Act, 1984, popularly called in the United Kingdom the PACE Act, 1984. A deep consideration of most of the reported cases from those jurisdictions has revealed only one pattern:

Disputes as to admissibility arise only with respect to admissibility of hi-tech evidence generated from the computer, especially evidence that has much to do with accuracy of the computer or any other machine generating it. It is not part of the practice in India and England that spurious objections be raised on admissibility of commonplace, ordinary documents printed out of the computer, as is being done daily in Nigerian Courts today.

It is very significant to further note that just like Section 64B of the Indian Evidence Act and Section 69 of the PACE Act, Section 84 of the Nigerian Evidence Act, 2011, intends that only complex evidence generated from the computer, against which the calculating or measuring accuracy of the computer is depended upon or stands to be tested is to be objected to or subjected to scrutiny by the Courts and not ordinary documents printed out of the computer.

Indeed, even before the enactment of the 2011 Evidence Act, computer printouts of ordinary documents like letters, deeds and correspondences were easily admissible, the only objections then being as to whether they were pleaded, or they were originals, or they were admissible as photocopies only upon fulfillment of certain conditions. It will amount to a dishonest attempt to rubbish the intendment of the new Evidence Act, therefore, to have computer evidence admissible as provided in the various Sections of the Act, if such spurious objections are entertained and at times upheld against the admissibility of ordinary documents emanating from the computer, like letters, deeds, etc. Trial Judges should always scrupulously resist such attempts, if for nothing else, to avoid unnecessary delays in trials occasioned by such unwarranted objections.”

The opinion of the learned author accords with the law and I adopt it as mine.

In the circumstances of this case, the bundle of documents, not being computer-generated documents, ought to have been relied upon by the Court below in the extradition proceedings.

For clarity, Section 17 of the Extradition Act, Cap E25 LFN 2004 provides thus:

(1) In any proceedings under this Act, any of the following documents, duly authenticated, shall be received in evidence without further proof.

a. Any warrant issued in a country other than Nigeria;

b. Any adoption or statement on oath or affirmation taken in any such country, or a copy of such deposition or statement;

c. Any certificate of conviction.

(2) For the purpose of this Act, any such document as is mentioned in Subsection (1) of this Section, shall be taken to be duly authenticated –

a. If, apart from this section, it is authenticated in any manner for the time being provided by law; or

b. If it complies with the requirements of Subsection (3) of this Section and is authenticated by the oath or affirmation of some witnesses or by being sealed with official seal of a minister of state of the country in which it was issued or taken.

(3) The requirements for this subsection are as follows –

a. a warrant must purport to be signed by a judge, magistrate or officer of the country in which it was issued;

b. a document such as is mentioned in Subsection (1)(b) of this Section, must purport to be certified under the hand of a judge, magistrate or officer of the country in which it was taken to be the original or a copy, as the case maybe, of the document in question;

c. a certificate of conviction must purport to be certified by a Judge, magistrate or officer of the country in which the conviction is stated to have taken place.

(4) For the purpose of this Act judicial notice shall be taken of the official seals of the ministers of state of countries other than Nigeria. (Underlining mine)

It is clear that the admissibility or otherwise of duly authenticated documents (Extradition package) in support of Extradition request in any Extradition proceeding is specifically provided under the Extradition Act Cap E25 LFN 2004 notwithstanding any contrary provision in the Evidence Act 2011 as amended being a municipal law and having regard to Section 2 of the Evidence Act, 2011 as the exception is clearly stated in Section 17 of the Extradition Act for the purpose of already duly authenticated foreign documents. The law is that specific statute on a matter is not affected by a general enactment on the same matter unless the earlier in time is radically inconsistent with the later. ATTORNEY GENERAL LAGOS STATE v. ATTORNEY GENERAL FEDERATION & ORS (2014) LPELR-22701 (SC) Pg.52-54, PARAS E-A. this Court Per MUHAMMAD, JSC held thus:

“The specific jurisdiction vested in the Federal High- Court under Section 251 (1) (a), (b) and (q) is exercisable “notwithstanding anything to the contrary in the Constitution” including the original jurisdiction conferred on the Supreme Court under the earlier Section 232 (1) of the same Constitution. The applicable principle of interpretation in this instance remains what Bairamain, J. (as he then was) in delivering the judgment of the then West African Court of Appeal in MRS. F. BAMBOYE v. ADMINISTRATOR GENERAL 14 WACA 616 at page 619 stated thus: “It is an accepted canon of construction that where there are two provisions, one special and the other general, covering the same subject matter, a case falling within the words of the special provision must be governed thereby and not by the terms of the general provision. The reason behind this rule is that the legislature in making the special provisions is considering the particular case and expressing its will in regard to that case; in other words, the special case provided for in it is expected and taken out of the general provision and its ambit: the general provision does not apply… the above Rule of construction applies equally, of course, when the special and the general provision are enacted in the same piece of legislation. See DRYDEN v. THE OVERSEERS OF PUTNEY (2).” This Court in its decisions too numerous to readily fathom has cited with approval the foregoing dicta and imbibed the principle so adroitly enunciated therein. See THE GOVERNOR OF KADUNA STATE & ORS v. LAWAL KAGOMA (1982)6 SC 87 at 107-108; KRAUS THOMPSON ORGANIZATION LTD v. NATIONAL INSTITUTE FOR POLICY AND STRATEGIC STUDIES (2004) LPELR-1714 (SC); (2004) 9 NWLR (Pt. 879) 61 and SCHROEDER v. MAJOR (1989) 2 NWLR (Pt. 101) 1 and ORUBU v. NEC (1988) 5 NWLR (Pt.94) 323.”

The requirement of Section 17 of the Extradition Act is due authentication. The function of the Courts is to interpret the law; the Court cannot add to or take away from the provisions of the contents of any legislation. See BOT & ORS v. JOS ELECTRICITY DISTRIBUTION PLC (2021) LPELR-55327(SC). The Court merely has to look at whether the provisions of Section 17 of the Extradition Act were complied with. Who were the people to authorize the Extradition according to the treaty with the USA? Was the request for Extradition signed by the authorized signatories and then authenticated as their official public signatures? Was the bundle of documents stamped with the proper official seal of the public officer or officer in charge of such matters in the requesting country? Whether the documents were duly executed by the requesting country? Was the information in the bundle of documents consistent with the facts of the Extradition request? For example, if the charge before the Court of competent jurisdiction in the requesting country as certified by the requesting country is for stealing a car, the Extradition request cannot be for stealing electronics equipment. If the charge before the Court was for drug trafficking, the request cannot be for kidnapping except in situations where the offences were committed in the same transaction by the citizen and so stated in the charge before the Court of the requesting country. Also, the enquiry would be whether the facts are consistent in one stream regarding the specific offence for which the citizen is sought to be extradited to a foreign country. Were the documents backed up by affidavit evidence of the investigation and findings by the law enforcement officers in the requesting country to ensure that it is not a case in which the request for extradition is based on personal vendetta of a public officer in a requesting country? In this case, the proceeding which is the subject of appeal was by an application for the extradition of Princewill Ugonna Anuebunwa (the Respondent) to the United State of America by the Attorney General of the Federation founded on a two count charge of conspiracy to commit a substantive offense against the United States, specifically, to commit wire fraud in violation of Title 18, U.S.C. Section 1349 and 1342, and wire fraud and aiding and abetting, in violation of Title 118, U.S.C. Sections 1343 and 2 and upon the request of the United States of America.

Nigeria’s extradition proceedings are structured towards prompt and efficient disposition of issues. The procedure starts with a request for the surrender of a fugitive criminal, made in writing to the Attorney-General of the Federation of Nigeria. The request is to be made by a diplomatic representative or consular officer of the country making the extradition request. Upon receiving the request, the Attorney-General has the discretion as to whether or not to initiate extradition proceedings. The Attorney-General cannot be compelled by order of mandamus or otherwise to initiate extradition proceedings where he has exercised the discretion to not proceed.

The requesting State and Nigeria’s Federal Ministry of Justice have the duty to ensure that certain extradition prerequisites are fulfilled. The 1999 Constitution by Section 34 and 35 guarantees freedoms including those relating to movement, liberty and dignity of the person. In protection of the constitutionally guaranteed rights, the Courts will not in the name of extradition carelessly surrender its citizens and non-citizens alike unless the Court is satisfied on the facts and position of the law. Prior to commencing extradition proceedings in the Federal High Court, a number of matters must be considered so as to present the required facts in the context of applicable law, otherwise the extradition application is likely to fail.

Pursuant to Sections 3, 9, and 11 of the Extradition Act, the Attorney General of the Federation must file an affidavit stating inter alia that the United states of America has submitted a request to the Attorney-General who must be satisfied that provision is made by the Laws of the United States of America, such that so long as the Respondent has not had reasonable opportunity of returning to Nigeria, he will not be detained or tried in that Country for any offence committed before his surrender other than the extradition offence which may be proved by the fact on which his surrender is granted. He is satisfied that the offence in respect of which the Respondent’s surrender is sought is not an offence of a political character and he is satisfied that the request for the surrender of the Respondent was not made for the purpose of prosecuting or punishing him on account of his race, religion, nationality or political opinions and that the said request was made in good faith and in the interest of justice.

The Attorney General of the Federation must show by affidavit evidence that if the Respondent is eventually surrendered, he will not be prejudiced at his trial and will not be punished, detained or restricted in his personal liberty, by reason of his race, nationality or political opinions, and he is satisfied that the offence for which the Respondent’s surrender is sought is not trivial in nature or that having regard to all the circumstances in which the offence was committed it will not be unjust or oppressive, or be too severe a punishment, to surrender him.

It must be averred furthermore, that the Attorney General is satisfied that the Respondent has been indicted of the offence for which his surrender is sought but that he is unlawfully at large, and, there is no criminal proceeding pending against him in Nigeria for the offence for which his surrender is sought, or any other offence for the time being. In this case, the Appellant tendered through affidavit evidence the following exhibits:

i. Original copy of a letter of Certification, with seal of the United States of America’s Department of States dated 18th day of October, 2017 signed by the Secretary of State, Rex W. Tillerson and duly commissioned and qualified in the presence of an Assistant Authentication Officer of the Department of States and presented for the Extradition of PRINCEWELL UGONNA ANUEBUNWA to the United States of America.

ii. Original copy of a letter of Certification, with seal Of the United States Department of Justice dated 6th October, 2017 signed by Director/Deputy Director, office of International Affairs, Criminal Division, Department of Justice and duly commissioned and qualified in the presence of Jefferson B. Sessions, Attorney-General of the United States authenticating that Jeffery. M. Olson was at the time of this request the Associate Director, Office of International Affairs charged with the capacity to make this request for the Extradition of PRINCEWILL UGONNA ANUEBUNWA.

iii. Originally copy of a letter of certification, 6th October, 2017 certifying the affidavit and all attached documents in support of the request for the Extradition of PRINCEWILL UGONNA ANUEBUNWA

iv. Original copy of affidavit in support of request for extradition of PRINCEWILL UGONNA ANUEBUNWA duly sworn to by Andrew K. Chan, A United States Citizen, Assistant U.S. Attorney’s Office for the Southern District of New York sworn to before the HONOURABLE Paul A. Crotty, U.S. District Judge, in the United States District Court for Southern District of New York, on the 14th day of September, 2017 and attached with the following Exhibits:

a) A certified true copy of the superseding indictment in criminal case no. S6 16 Cr. 575 by the Grand jury of America and filed on the 7th December, 17 in the United States District Court for the Southern District of New York, United States of America, signed by A True Bill, FOREPERSON, US, Attorney, Preet Bharara, and it is certified and attested with the seal of Court by the Deputy Clerk of Court.

b) A certified true copy of warrant for the arrest of PRINCEWILL UGONNA ANUEBUNWA, case No S 6 16 Cr. 575 and issued by the United State District Court for the southern District of New York dated 25th August, 2016;

c) Certified true copy of the United States of America’s Laws or Relevant Statutes that provides for the offenses and punishment to which Princewill UGONNA ANUEBUNWA is indicted.

d) Original copy of affidavit in support of request for Extradition (sic) of PRINCE-WILL UGONNA ANUEBUNWA duly sworn to by Stephen Fullington, A United States Citizen, Special Agent of the Federal Bureau of Investigations United States sworn to – before the HONOURABLE Paul A. Crotty, US District Judge, in the United States District Court for Southern District of New York on the 14th day of September, 2017.

e) Photograph representation identity of PRINCEWILL UGONNA ANUEBUNWA.

There is a presumption of regularity in the affidavit evidence of the investigating police officers as it relates to their investigation and findings regarding the specific offence for which extradition of the citizen is sought. The affidavit must have been sworn to before a Court of law or a notary public. There must be abundant evidence that the bundle of documents fulfilled all conditions required by Section 17 of the Extradition Act and where it appears to have done so, there is presumption of regularity in respect of such bundle. Particularly where the documents were properly delivered by the requesting authority.

The clincher here is derived from Section 50-52 of the Evidence Act 2011. Section 52 provides as follows for ease of reference:

An entry in any public or other official books, register or record, including electronic record stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty, or by any other person in the performance of a duty specially enjoined by the law of the country in which such book, register or record is kept, is itself admissible.

This is reinforced by Section 3 of the Evidence Act which provides for admissibility of evidence under other legislation. There is presumption of law that a document emanating from an official source is correct when there is no affidavit evidence to show otherwise.

There is no issue of admissibility pursuant to Section 84 of the Evidence Act here. It should not have been imported into the proceedings to confuse matters by the Respondent’s Counsel. The area of admissibility pursuant to Section 84 of the Evidence Act has been closed for exploration by the wordings of Section 17(1) as underlined above by me. Since the Extradition Act fully guides the Extradition proceedings the issue of admissibility or whether the typewriter Computer (word processor) used was verified by a statement or not pursuant to Section 84 of the Evidence Act does not arise for consideration. In any event, the statement to validate any computer printout can even be orally made in Court or by affidavit evidence.

My Lords, the issue of the admissibility of the bundle of documents emanating from the requesting country to the country of refuge or the country of nationality does not arise by virtue of Section 17 of the Extradition Act so long as all the requirement stated earlier have been answered by the bundle of documents emanating from the proper authorities in the requesting country and given to the proper authority in the country of refuge or country of nationality of the person sought to be extradited. At best, if there is verifiable challenge to some of the facts relied on by the requesting country, the issue of weight to be attached to the affidavit evidence may arise in special circumstances.

The admissibility of the documents may go to the root of the trial of the Respondent in the requesting country but it is certainly not relevant to the proceedings for extradition. This is because the extradition proceeding is not the criminal trial of the Respondent and should not be so equated. The issue of S.84 as stated earlier merely muddied the waters.

On this issue, the majority of the Court below held as follows on page 427 of the record.

“It is clear from the evidence of the Respondent i.e. the application for extradition of the Appellant and the affidavit in support with its attached exhibits that the Respondent might not have complied with the provisions of Section 84(4) as to the requirement for the admissibility of the evidence at the trial Court.”

I agree in toto with the dissenting opinion of Stephen Jonah Adah JCA on page 456 of the record and could not have put it better myself where his Lordship stated as follows:

“…under this law, the responsibility of ensuring that the documents admitted into evidence are from authentic sources which Section 84 of the Evidence Act addressed, is addressed in Section 17 of the Extradition Act.

The only area to note critically is the fact that Section 84 is a municipal law laying down the test to deploy to assure authenticity of documents generated by computers, while Section 17 of the Extradition Act deals with documents authenticated from foreign jurisdiction. The documents authenticated from foreign jurisdictions are prima facie admissible without rigorous proof. It is therefore, settled from the law that Section 84 of the Evidence Act is not automatically applicable to Extradition proceeding.”

In the circumstances, this issue is resolved in favour of the Appellant.

ISSUE TWO

On this issue, learned Appellant’s counsel submitted that the purpose of extradition hearing upon the application of the Attorney-General is not to conduct a criminal trial of the fugitive Respondent. Rather it is to invoke the exercise of the judicial powers of the Court over the fugitive as the Court would over a defendant standing trial before it.

Both lower Courts agreed and I agree with them that the requirement for the grant of surrender order of a fugitive criminal in an extradition proceeding at page 416-417 of the Record of Appeal to the effect that extradition is not a full blown trial and the Applicant (Honourable Attorney-General of the Federation) is expected to establish prima facie evidence, before a judge in the case of a fugitive criminal.

The learned counsel argued that the Court below misinterpreted and did not appreciate the purport of Section 9 (6A) of the Extradition (Amendment) Act, 2018 viz-a-viz the trial Court’s decision by placing the burden of proof beyond prima facie requirement on the Appellant. Counsel submitted that the law is settled that when interpreting clear and unambiguous words of a statute it should be given its literal meaning. Counsel cited AWOLOWO v. SHAGARI (1979) 6-9 SC, A.G OGUN STATE v. ABERUAGBA & ORS (1985) LPELR-3164 (SC).

Learned Appellant’s counsel insisted that the extradition package forwarded by the United State of America in request for the extradition of the Respondent was not only detailed but proactive to rebut satisfactorily the defence of mistaken identity even if properly raised in accordance with Section 9(6A) of the Extradition (Amendment) Act, 2018.

Counsel argued that the Court below erred in law to have jettisoned the findings of the trial Court by placing on the Appellant a greater burden of proof than what was expected by enabling laws in extradition proceedings. Counsel cited MAINSTREET BANK & ANOR V. BINNA (2016) LPELR-48351 (SC) P.32 Paras B-D.

Counsel argued that the affidavit attached to the request for extradition constituted evidence to be rebutted by the Respondent who failed to do so when the evidential burden of proof shifted to him. Counsel cited IROAGBARA V. UFOMADU (2009) LPELR-1538 (SC).

Learned counsel argued that the respondent had contended that his was a case of mistaken identity as the intended indicted person was not him since the description in the extradition package did not fit his description in that while the package referred to a “black male”, he was light skinned. Counsel urged the Court to rely on the exhibits attached to the affidavit as part of the package/bundle delivered to the Appellant by the requesting country.

On this issue, learned Respondent’s counsel argued that once a claim of mistaken identity is made pursuant to Section 9(6)(A) of the Extradition (Amendment) Act, 2018, the burden lies squarely on the Appellant to prove that the person sought to be surrendered is the person before the Court.

​

Learned Respondent’s counsel referred to the findings of the trial Court at page 327 of the record which placed the burden of proof of identity on the Respondent and not on the Appellant. Learned counsel urged this Court to agree with the reasoning in the majority decision of the Court below that the Appellant did not discharge the burden of proof that the Respondent is the person indicted and should be surrendered.

Learned Respondent’s counsel argued that the finding of the trial Court was erroneous in the face of the clear provisions of the Extradition (Amendment) Act 2018. The trial judge, who ought to have discharged the Respondent on this provision alone, misapplied the law by placing the onus of proof on the Respondent; granted the extradition of the Respondent and ordered his surrender to the United States of America.

Counsel argued further that the Court below was right to have set aside the judgment of the trial Court since misplacement of burden of proof in that case led to miscarriage of justice. Counsel cited OKOYE v. NWANKWO (2014)15 NWLR Pt.1429. Pg. 93 at 131. Counsel also cited ABUBAKAR v. NASAMU (2011) LPELR-1831(SC) Pg. 71- 72, paras. F-A), ADIGUN v. AG OYO STATE (1987) 1 NWLR Pt.53 at 678.

OPINION

Extradition is a cooperative legal process of one state called the surrendering state or authority which surrenders an individual to another state called the requesting state for prosecution or punishment for crimes committed within the requesting country’s jurisdiction. The extradition process is usually spelled out in bilateral or multilateral extradition treaties or agreements. Extradition becomes necessary when a criminal fugitive flees from one country to another to avoid facing trial or punishment. Persons who may be extradited include those who have been tried and convicted but escaped custody by fleeing the country, and those convicted in absentia- a trial in which the accused person is not physically present. Extradition is distinguished from other methods of forcibly removing undesirable persons from a country, such as exile, expulsion and deportation.

Extradition procedures are usually determined by the terms of treaties between individual countries or by multilateral agreements between groups of countries such as the Common Wealth countries or the countries of the European Union. The receiving government then refers to its laws and its treaty-specified obligations to the requesting nation and decides whether or not to extradite the person named in the warrant. Treaties signed in recent decades tend to take a “dual criminality” approach, classifying as extraditable all crimes that are punishable in both jurisdictions. Older extradition treaties, by contrast, tend to list covered offenses.

As stated earlier, before the Court can grant the surrender order of a citizen of its country or a fugitive expatriate, the applicant in this case, the AGF is expected to establish by prima facie evidence:

a. That there is a request for the surrender of the fugitive;

b. That the fugitive is accused of extradition offences in a country other than Nigeria;

c. That there is warrant of arrest issued outside Nigeria authorizing the arrest of the fugitive;

d. That the warrant was issued in a country to which Extradition Act applies;

e. That the warrant was duly authenticated and same relate to the fugitive;

f. That the offences which the fugitive is accused of are ext

g. That the evidence produced will according to theraditable offences; law in Nigeria, justify the committal of the fugitive for trial if the offences were committed in Nigeria; and

​h. That the surrender of the fugitive is not precluded by the provisions of the Extradition Act and particularly Section 3 (1-7) of the Act. See Order V Rules 1 Federal High Court (Extradition Proceedings) Rules 2015 and Sections 3, 5, 6 & 9 of the Extradition Act, CAP E25 LFN 2004. By the Extradition (Amendment) Act, 2018 which amends the Extradition Act CAP E26, LFN, 2004 to remove the jurisdiction of the Magistrate Court and replace it with the Federal High Court in extradition proceedings. The amendment also provides for procedural safeguards to avoid extradition of persons in cases of mistaken identity. Section 9(6A) of the Extradition (Amendment) Act, 2018 provides thus:

Where a claim of mistaken identity is raised by a person who is the Defendant in an extradition case and no evidence is led by the plaintiff or the requesting country to satisfactorily rebut the claim of mistaken identity as raised by the Defendant, the Court shall dismiss the application for extradition order and accordingly order the Defendant discharged.

Generally, all cases and matters before the Courts in Nigeria are either civil or criminal. The proper classification of a case is important because of the applicable procedural rules and standards. Extradition Proceedings in Nigeria are sui generis and strictly guided by the Extradition Act and Extradition Proceedings Rules. The proceedings are criminal to the extent that they deal with a criminal charge or conviction raised by the requesting State. However, unlike regular criminal proceedings, extradition proceedings do not result in a determination of whether the alleged fugitive is guilty or innocent, nor do they end in a post-conviction sentence. Extradition proceedings are therefore a peculiar kind of criminal proceedings.

A most fundamental significance of the distinction is that generally, the standard of proof is higher in criminal matters than in civil matters. The standard in criminal cases is proof beyond reasonable doubt, while in civil cases it is sufficient to prove on a balance of probabilities or preponderance of evidence. Where the person sought to be extradited files a Fundamental Human Rights enforcement case, the case will be a civil matter even though it arises from, or is linked to, extradition proceedings.

​

I agree with the Appellant’s Counsel that the purpose of the hearing in the trial Court upon the application of the Attorney-General is not for the trial of the fugitive criminal. Rather, it is to invoke the exercise of the judicial powers of the Court over the fugitive defendant as the Court would over a defendant standing trial before it. In the circumstance, those powers are preliminary to the eventual trial of the fugitive accused, such as the power to remand or to release on bail pending the completion of investigation.

The reference to the appropriate Court in Section 9(1) of the Extradition Act is to confer on the trial Court, the special jurisdiction and powers to perform the preliminary judicial functions requisite to enhance the administrative processes for the completion and execution of the request of the Attorney-General to surrender the alleged fugitive criminal to the requesting country. The fugitive is not standing trial for the offence for which the extradition order is sought.

To perform this function, the judge uses the standard that is required before the Courts in Nigeria in committing a defendant to face trial which is the establishment by the prosecution of a prima facie case. In Nigerian jurisprudence, a prima facie case means that there is reason for the Court to continue the proceedings, in this case, to order the surrender of the fugitive to the requesting state for the trial or to serve his sentence. See AGBO & ORS v. STATE (2013) 11 NWLR Pt. 1365 Pg. 377. The evidence must be sufficient to warrant a Court to commit the fugitive to face trial. Thus prima facie evidence is evidence good and sufficient on its face.

The new amendment to the Extradition Act by the addition of Section 6A to Section 9(6) has squarely placed the burden of proving the identity of the person sought to be extradited on the requesting authority. By virtue of Section 132 of the Evidence Act 2011, the burden of proof in a suit or proceedings lies on that person who would fail if no evidence at all were given on either side. In the circumstances of this case, where a person (citizen) challenges his extradition on the basis of wrong identity, the applicant (AGF) has the burden of proving the identity of the person to be extradited on a balance of probabilities. The legal burden is fixed on the applicant in this case the Appellant. By Section 133(1) of the Evidence Act the Appellant must first prove the identity of the person to be extradited. As in all civil matters, the burden of proof will shift from side to side as the evidence preponderates. The wordings of Section 17 of the Extradition Act which states that the extradition package is admissible without further proof has not been watered down by Section 9(6A) of the same Act as admissibility is different from probative value to be given any piece of evidence.

It is settled law that what pleadings is to a party is what an affidavit is to a party in an interlocutory application or even in certain substantive or originating process and any document attached to an affidavit is part of the affidavit and must be considered together. See UBN PLC v. ASTRA BUILDER (W.A) Ltd (2010) LPELR-3383(SC). The affidavit evidence of the Appellant with the bundle of extradition documents were copious enough to make a prima facie case.

The Respondent herein claimed that the extradition package described him as a “black male” whereas he is light skinned in color. We all know without any prevarication or dissembling that “black male” refers to race rather than tone of skin color. The Extradition package submitted to the Appellant by the requesting state contained particularly Exhibit D1-D4 namely: UAE Entry Visa, Federal Republic of Nigeria’s issued Driver’s license, all carrying a photo impression of the Respondent. The Respondent never swore that the photographs attached were not of him. It is my view that Exhibit CAUI, the extradition package with its details of photo evidence of the Respondent rebutted the assertion of the Respondent that he is a victim of false identity on the balance probabilities to warrant the evidential burden to shift to the Respondent. Exhibit CAUI was very detailed regarding the identity of the Respondent. It is not enough for the Respondent to make the serious claim of mistaken identity then fail to substantiate it by any evidence.

The circumstances of this case are clear. The Respondent claims mistaken identity on the basis that he has a twin brother who may be the person sought to be extradited. The affidavit on record shows that the Appellant’s twin brother bears another name and is also facing extradition in the United Kingdom. A claim of mistaken identity is relevant where Mr. Peter so called and identified is mistaken for Mr. James who bears a different name and identity. Where Mr. Peter is sought to be arrested and he is in fact arrested, he cannot claim that the authorities should have arrested Mr. James as he is not Mr. James. That is to say where the authorities seeking an identifiable person called Mr. Peter, mistakenly arrests another identifiable person and calls him Mr. Peter whereas that other person’s rightful name and identity is Mr. James, then Mr. James can lay claim to being mistaken for Mr. Peter. That is not the case here.

I am of the view that the Appellant discharged the burden of proof placed on him by Section 9(6A) of the Extradition Act. This issue is resolved in favour of the Appellant.

CROSS-APPEAL

The Respondents cross-appealed. The sole issue for determination as crystallized by the Cross Appellant is:

Whether the lower Court was right not to dismiss the extradition application having regard to Section 9 (6A) of the Extradition (Amendment) Act 2018.

The Respondent in the main appeal complained about the failure of the majority decision of the Court below to discharge the Respondent instead of the order that the Respondent, should be subjected to a retrial. Counsel submitted that the Court below having found that the trial Court misplaced the burden of proof on the issue of identity of the Respondent, should have promptly discharged the Respondent.

Learned Cross Respondent argued that the affidavit of the Cross appellant shows that a claim of mistaken identity was raised by the trial Court.

Counsel argued that the Court below arrived at the conclusion that the Cross Respondent was “expected to prove otherwise.”

He who asserts must prove. If the cross-respondent averted that he was satisfied with the evidence against the cross-appellant, it was his duty to discharge the burden of proof as he who asserts must prove.

Learned Counsel for the Cross-Respondent argued that the extradition application was in full compliance with the law. Counsel argued that it is the duty of the cross-appellant to prove that he has a twin brother which is a fact particularly within his own knowledge.

Learned Cross-Respondent argued that the evidential burden swings from side to side or party to party depending on the fact in issue.

Counsel cited OKOYE v. NWANKWO (2014) LPELR-23172 (SC).

Learned Cross-Respondent counsel argued that the Court below was wrong in law to place on it the burden to prove facts within the knowledge of the Cross-Appellant.

OPINION ON CROSS-APPEAL

The portion of the decision of the Court below which forms the basis of this cross-appeal is on Pg. 459 of the Record:

“Having regards to all my findings on the issues above, it is clear that the trial Court did not appreciate the issues of law which were brought before it and in this circumstance, the trial judge failed in his primary duty in the evaluation of evidence to make findings of fact on the issue or issues joined on the evidence of the parties before it, material for reaching a just decision. This Court therefore has no other option than set aside the decision of the trial Court and order that this case be sent back to the trial Court for a retrial. An order for accelerated hearing of the matter at the trial Court is hereby made.”

In the majority judgment of the Court below at pg. 439, the Court found as follows:

“I believe that an issue of mistaken identity as in this case is one that should not be taken lightly to avoid a person from suffering for the sins of another.

Looking at both the application for extradition of the Appellant and the Counter-Affidavit in opposition thereto, it is clear that the Respondent applied for the extradition of the Appellant at the trial Court because he believes the Appellant is the one who was requested by the United States of America for extradition to answer to criminal charge against him in that country. The appellant in turn refuted that claim by stating in Counter-Affidavit contained at page 205 of the Record of Appeal especially at paragraph 9, 11, 13 and 15b that he is not the person who the Respondent has applied to extradite.

In my view, what was expected of the Respondent was to bring sufficient evidence to prove otherwise. If I must borrow the words of the trial judge at page 327 of the Record of Appeal, in our jurisprudence, he who asserts must prove. What this simply means is that in view of the fact that the Respondent averred that he is satisfied that the Appellant has been indicted of the offence for which his surrender is sought, the burden of proof rested on the Respondent. And this is by an interpretation of Section 131 (1) of the Evidence Act. It is trite law that he who asserts must prove correctness of his assertion.”

At the trial Court, the learned trial judge held on page 327 of the record as follows:

“On the other hand, the respondent in their Counter-Affidavit did not tender any documentary or material evidence to buttress their assertion especially that the respondent is not the person who travelled to the United States but his twin brother. Where issue of identity is raised as an issue by a respondent in extradition proceeding, it is not the duty of the applicant to deny but that of the respondent to prove.”

In essence, while the cross-appellant argued that on the issue of identity of the person to be extradited, the onus of proof of identity lies and is fixed on the cross Respondent, the cross-appellant also urged the view that the onus of proof of the identity of the cross Appellant should not shift from the Cross Respondent. The cross-respondent argued that AGF had discharged the onus of proof and it had shifted to the Cross-Appellant.

OPINION

This boils down to the question already answered in part earlier in the substantive appeal which is to wit:

What is the legal and evidential burden of proof placed on the refugee state in extradition proceedings. As stated earlier, extradition proceedings are sui generis. While the legal burden of proof is fixed, the evidential burden shifts as the evidence preponderates. OKOYE & ORS v. NWANKWO (2014) LPELR-23172 (SC) wherein Per Peter-Odili, JSC opined thus:

“Burden of proof is two-fold. The first is the ability of the Plaintiff to establish and prove the entire or reasonable portion of his case before a Court of law that can give judgment in his favour. This is always constantly on the Plaintiff. The other type is related to particular facts or issues which a party claims exist. It is this burden of proof that oscillates from one party to the other. While the first type of burden of proof is called legal burden of the burden of establishing a case, the second one is called evidential burden.”

The protagonist in an extradition proceeding is of course the surrendering authority who tenders all the bundle of documents which emanated from the requesting authority. Section 9(6A) of the Extradition Act (as amended) provides:

(6A) Where a claim of mistaken identity is raised by a person who is a Defendant in an Extradition case and no evidence is led by the plaintiff or the requesting country to satisfactorily rebut the claim of mistaken identity as raised by the Defendant, the Court shall dismiss the application for extradition order and accordingly order the defendant discharged.”

Where the issue of mistaken identity is raised, the Court has to weigh on a balance of probability whether the affidavit evidence adduced by the requesting authority is sufficient to counter the claim of mistaken identity. My Lords, the extradition package (Exhibit CAU 1) contained documentary evidence to wit- Exh. A – certified true copy of superseding indictment, Exh. B – certified true copy of arrest warrant, Exh. C-Relevant legal provisions, Affidavit in support of Request for Extradition and thereto attached are Exh. D-Affidavit of FBI special Agent Stephen Fullington, Attachment D1- Photograph of Anuebunwa from Mike. William 1954 account; Attachment D2-Photograph of Anuebunwa from investment account; D3 – Image of Anuebunwa from Instagram, and D4- Image of Anuebunwa from US visa application.

​It appears that this provision is inapplicable having regard to the facts and circumstances of this case. It would have been applicable if the request had been for extradition of Princewill Ugonna Anuebunwa and the Appellant argued that he is not Princewill Ugonna Anuebunwa. The request package and application filed at the trial Court requested the extradition of Princewill Ugonna Anuebunwa. The Appellant did not claim that he is not Princewill Ugonna Anuebunwa. He only alleged that the target of the extradition proceedings must be his brother. But his brother has a totally different name. He did not allege that they share the same name. It would have been a different case if the extradition request bore his brother’s name but he was the one arrested and sought to be extradited. If the Appellant wanted to apply for the extradition of the Respondent’s brother, he would have so applied. The Appellant would not have listed the Respondent’s name in the application. There is no issue of mistaken identity here. Section 9(6A) of the Extradition Act, 2018 is indeed irrelevant to this case. All the Respondent’s argument in this regard amounts to a failed attempt to force the provision to apply to a totally unrelated set of facts. I am of the view that where the counter-affidavit is unable to substantially rebut the evidence in the requesting affidavit, there is no need for a further affidavit. When any fact is especially within the knowledge of a defendant and upon which he would want to rely, the burden of proving it is on him. It is not enough to assert as shown on Pg. 205 of the record in the Cross-appellant’s counter-affidavit that he had never been to the United States, that only his twin brother had been to the USA and that he is not a black male with brown eyes etc. The averments in the counter affidavit of the Respondent/Cross-Appellant at trial were too feeble compared to the quality and quantity of affidavit evidence adduced by the requesting country. No doubt it was wrong for the trial Court to place the evidential burden of proof wholly on the requesting country in the way it was expressed. However, even where the decision is right but the reasons given for it is wrong so long as it has not caused miscarriage of justice, it will not be set aside. I am of the view that the cross-appeal has no substance and should be dismissed. It is hereby dismissed.

Appeal Allowed. Cross-Appeal Dismissed.

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SC.CV/118/2021