Whether The Extradition Of An Accused Person Must Be Done In Due Compliance With The Law

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TITLE: WHETHER THE EXTRADITION OF AN ACCUSED PERSON MUST BE DONE IN DUE COMPLIANCE WITH THE LAW

CASE TITLE:  KANU v. FRN (2022) LPELR-58768(CA)

JUDGMENT DATE:  13TH OCTOBER, 2022

JUSTICES: JUMMAI HANNATU SANKEY, JCA
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, JCA
EBIOWEI TOBI, JCA


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COURT DIVISION: ABUJA

PRACTICE AREA: EXTRADITION LAW

FACTS:
​The Appellant was the Defendant in Charge No: FHC/CR/383/2015 wherein a four-count amended charge was pending against him. However, upon his rendition from Kenya to Nigeria on the 27th day of June, 2021, he was brought before the trial Court on the 29th day of June, 2021. A seven-count amended charge was filed against him by the Respondent on the 13th October, 2021 and later amended on the 20th October, 2021. The Charge was further amended to a 15 Count Charge on the 17th of January, 2022.

Upon being served, the Appellant, on the 19th day of January, 2022, filed a Notice of Preliminary Objection challenging the jurisdiction of the trial Court to try him on the 15-Count Amended Charge. The trial Court, in its ruling delivered on the 8th Day of April, 2022 struck out Counts 6,7,9,10,11,12,13 and 14, and retained counts 1,2,3,4,5,8 and 15 of the amended charge. It is this ruling against which the Appellant has appealed.
Dissatisfied with the judgment, the Appellants appealed to the Supreme Court.

ISSUES:
The appeal was determined upon consideration of the issues thus:
1.​Whether the lower Court properly evaluated and ascribed probative value to the Appellant’s evidence, when it failed to consider, make finding of facts and accordingly pronounce on issue one raised for the trial Court’s determination, relating to the extraordinary rendition of the Appellant?
2.Whether the lower Court has the jurisdiction to try the Appellant for alleged offences committed in vacuo or which situs was not stated?
3.Whether the Appellant can be prosecuted for an offence which its validity is the subject matter of an appeal?
4.Whether the lower Court has the jurisdiction to try the Appellant for alleged offences committed outside its territorial jurisdiction?
5.Whether the Appellant can be tried for offences which the proof of evidence in support thereof does not disclose a prima facie case against him?

COUNSEL SUBMISSIONS
Learned counsel for the Appellant submitted that the Appellant was abducted from Kenya and rendered to Nigeria without being first subjected to extradition proceedings in Kenya, in violation of extant international conventions and treaties, and argued that, having not been properly brought before the Court. He further submitted that the unlawful and extraordinary rendition, without any form of hearing or due process, is in violation of a plethora of international laws, to which the Respondent is a State Party.
Learned counsel for the Appellant argued that the law prohibits the Appellant from either being detained, tried or otherwise dealt with in Nigeria for or in respect of an offence allegedly committed by him before his surrender to Nigeria, and submitted that the lower Court thus does not have jurisdiction to try him on the Counts retained by it, having been allegedly committed by the Appellant before his forceful rendition and surrender to Nigeria. Learned counsel for the Appellant further submitted that the failure of the lower Court to pronounce on the issue of extraordinary rendition of the Appellant, which was properly raised before it in the Appellant’s Preliminary Objection, is a gross violation of the Appellant’s Right to fair hearing.
In their reaction, learned counsel for the Respondent submitted that the issue of whether the Appellant was properly brought before the trial Court is a matter to be established during the course of the trial and not at this preliminary stage, since the law forbids a Court from delving into substantive matters when considering a Preliminary Objection.

DECISION/HELD
In conclusion, the appeal was allowed.

RATIO
1.CRIMINAL LAW AND PROCEDURE – EXTRADITION: Whether a person extradited can only stand trial for the offence he is extradited for

“a person extradited can only stand trial for the offence he is extradited for. There are a few loose ends in the Respondent’s case. In the absence of any evidence as to the extradition request from Nigeria, there is nothing to show what he was rendered for. Is it the 4-count charge that borders on treason which he was standing trial for before he fled Nigeria or the terrorism charges which he was charged for after he was brought back to Nigeria? By the provision of the law, he cannot be charged for the four counts but for the amended charges if he was extradited and not extraordinarily rendered.” Per TOBI

2.INTERNATIONAL LAW- EXTRADITION: Whether the provisions of the law must be obeyed as regards the extradition of an accused person

“Laws are meant to be obeyed. Where a law sets down the way and manner a thing is to be done, citizens, and more so the State, is obliged to obey. No matter how grievous the offence(s) charged, all persons are entitled to a fair trial conducted in obedience to the tenets of the law. Courts must also uphold the law as it is and not as it ought to be, and never to suit the convenience of any person, natural or juristic. Nigeria is a democracy and by its very Constitution, the rule of law must prevail and be upheld. Finally, the exhortation of the Supreme Court, per Ogundare, JSC, made in the case of Abacha V Fawehinmi (2000) LPELR-14(SC) 13-14, C-B, is pivotal to the facts of this Appeal. Therein, his Lordship emphatically pronounced thus –

“… Where, however, the treaty is enacted into law by the National Assembly as was the case with the African Charter which is incorporated into our municipal (i.e., domestic) law by the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act Cap 10, Laws of the Federation of Nigeria 1990 (hereinafter referred to simply as Cap. 10) it becomes binding and our Courts must give effect to it like all other laws falling within the judicial powers of the Courts. By Cap. 10 the African Charter is now part of the Laws of Nigeria and like all other Laws, the Court must uphold it. The Charter gives to citizens of member States of the Organization of African Unity rights and obligations, which rights and obligations are to be obeyed by our Courts, if they must have any meaning. It is interesting to note that the rights and obligations contained in the Charter are not new to Nigeria as most of these rights and obligations are already enshrined in our Constitution. See Chapter IV of the 1979 and 1999 Constitutions.” (Emphasis supplied)

Section 15 of the Extradition Act, cap E25 Laws of the Federation 2004, relied on by the Appellant by way of reliefs sought in his Notice of Appeal, provides –

“Where, in accordance with the law of any country within the Commonwealth or in pursuance of an extradition agreement between Nigeria and another country (whether within the Commonwealth or not), any person accused of or unlawfully at large after conviction of an offence committed within the jurisdiction of Nigeria is surrendered to Nigeria by the country in question, then, so long as he has not had a reasonable opportunity of returning to that country, that person shall not be detained (whether under this Act or otherwise), tried or otherwise dealt with in Nigeria for or in respect of an offence committed by him before his surrender to Nigeria other than –
(a) The offence for which he was surrendered or any lesser offence which may be proved by the facts on which his surrender was granted; or

(b) Any other offence (being one corresponding to an offence described in Section 20 of this Act) of the same nature as the offence for which he was surrendered: Provided that a person falling within this section shall not be detained or tried for an offence by virtue of paragraph (b) of this section without the prior consent of the country surrendering him.” (Emphasis supplied)

It is therefore for all the above reasons that I find that the trial Court was bereft of jurisdiction to try the Appellant for counts 1, 2, 3, 4, 5, 8 and 15 allegedly committed by him prior to his extraordinary rendition. In this regard, I agree with the leading Judgment of my learned brother that the Appellant has proved his entitlement to the benefit of Section 15 of the Extradition Act Cap E25, Laws of the Federation (supra) which prohibits the Appellant from being detained, tried or otherwise dealt with in Nigeria for any offence allegedly committed by him before his extraordinary rendition to Nigeria.” Per SANKEY

3.INTERNATIONAL LAW- EXTRADITION: Position of the law on rendition/extradition of person(s) accused of terrorism; whether all relevant laws on rendition/extradition must be complied with

“On issue 1, my Lord, O.A. Adefope-Okojie, JCA in the leading judgment has stated so adequately well the law on extradition and the need for Government to ensure that any extradition follows the procedure laid down by International Laws and Treaties and even domestic Laws. In this respect, the relevant laws and treaties learned senior counsel referred to which my learned brother adequately addressed in the leading judgment are OAU Convention on the Prevention and Combating of Terrorism, (OAU convention) (Articles 7, 8 and 11), Protocol to OAU Convention, The Principles and Guidelines on Human and Peoples’ Right while countering Terrorism in Africa (Article 3), African Charter on Human and Peoples Right (Section 45), Principles and Guidelines on Human and Peoples’ Right while Countering Terrorism in Africa (Part 5); Terrorism (Prevention) Amendment Act, 2013 (Section 1A (2)); Administration of Criminal Justice Act (Sections 3, 4, 5, 47), African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, Cap A9 LFN 2004; Extradition Act Cap E25 Laws of the Federation (Section 15). The position of the law on what will constitute an extradition in the light of the above legislation and treaties has been properly addressed by the learned silk and my learned brother in the leading judgment. I am not sure I have anything useful to add other than to say that laws and rules are meant to be obeyed by all and sundry as no one should be above the law. Adherence to the rule of law is what makes a democracy a true democracy. Similarly, treaties are to be followed by all signatories to it. If a country decides to be signatories to a treaty, it is a direct notification that that country will comply with the terms of the treaties. It is true that an International treaty cannot determine rights of citizens and does not become operating law in a country until it is domesticated as only National States are subject to international law. The further truth is that a country who is a signatory to a treaty should comply with the treaty. See A.G Federation vs A.G of Abia State & Ors (2001) LPELR-24862(SC), Abacha & Ors v. Fawehinmi (2000) 4 S.C (Pt II) 1. No Government can extradite any person without following due process which includes making the request and having a hearing to eventually extradite the person complying with all known laws and procedures. Even when the person is properly extradited, he can only be tried for the offence he is extradited for based on the doctrine of specialty.

The procedure must be complied with otherwise the extradition will be unlawful in law and can be properly described as extraordinary rendition.” Per TOBI


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