George Udeozor V. Federal Republic Of Nigeria (2007)

LawGlobal-Hub Lead Judgment Report

DONGBAN-MENSEM, J.C.A.

On 9th June, 2004, the then Attorney-General of the Federal Republic of Nigeria signified to the trial court, by an order under his hand, that a request had been made to his office for the extradition of the appellant. The signification was made pursuant to the Extradition Act, Cap. 125, LFN, 1990. The request was made by the diplomatic representative of the Embassy of the United States of America Abuja, for the surrender of Mr. George Chidebe Udeozor, the appellant.

The documents accompanying the request for surrender indicate that the appellant had been charged in the United States District of Maryland, with the offences of:-

1. Conspiracy to

(a) Commit involuntary servitude,

(b) Harbor an illegal alien, and

(c) Encourage an illegal alien to come to, enter and reside in the United States. Also involuntary servitude and harbouring an illegal alien for financial gain at the United States District of Maryland.

The request was also accompanied by the following documents:

(i) Original copy of a letter of certification; with seal; by the United States of America Department of State dated 17th day of December, 2003;

(ii) Original copy of a letter of certification; with seal; by the United States Department of Justice dated 17th day of December, 2003;

(iii) Original copy of a letter of certification; by Ernestine B. Gilpin dated 17th day of December; 2003;

(iv) Original copy of an affidavit in support of Request for extradition of George Chidebe Udeozor deposed to by Seth Rosenthal on the 12th day of December; 2003; and attached with the under mentioned exhibit.

(a) Exhibit 1:- A certified true copy of superseding indictment dated 12th November; 2003.

(b) Exhibit 2:- A certified true copy of a warrant of arrest dated 12th November, 2003.

(c) Exhibit 3:- A copy of statutes implicated by the superseding indictment.

(d) Exhibit 4:- A copy of statute of limitation governing offences charged in superseding indictment.

(e) Exhibit 5:- Original affidavit of Special Agent David Nelson; of United States immigration and Customs Enforcement; with attachments 1, 2, 3, 4, 5, 6, 7 and 8 which is photograph of George Chidebe Udeozor.

In support of the application was filed a five paragraph affidavit of Akindele Kolin whose deposition are made on behalf of the Hon. Attorney General of the Federation.

At the hearing of the application, the appellant opposed the grant of the application but was over-ruled, the application was granted and the appellant ordered to be remanded in prison custody to await his surrender over to the United States of America.

Perturbed and discontented with the decision of the trial court, the appellant appealed the decision on four grounds of appeal which were amended with the leave of this court from the three grounds initially filed, the fourth original ground then, being the omnibus ground.

The amended grounds of appeal without their particulars are as follows:

1. Ground One:

“The learned trial Judge erred in law in refusing to declare proceedings nullity when he construed the provision of section 9(1) of the Extradition Act and held that since what was before the court was a mere request for extradition, all the requirements for a valid arraignment in a criminal trial (or at least as near as possible) need not apply.

Ground Two:

“The learned trial Judge erred in law when he held that the word “may” as used in section 20 of the Extradition Act is permissive and not mandatory and that the section applies only to commonwealth countries which America is not part of.”

Ground Three:

“The learned trial Judge erred in law when he construed section 3 of the Extradition Act and held, in effect, that, the Attorney-General need not place those facts before the court to enable the Court exercise its discretion one way or the other.”

Ground Four:

‘The learned trial Judge erred, in deciding whether the offences for which the appellant is sought are returnable, when he held as follows:

“Although, the punishments under the United States Code prescribed a period of more than 2 years but same are the maximum without specifying what the minimum punishment is.”

Three issues were distilled by the appellant from the four amended grounds of appeal filed. The respondent adopted the issues as formulated by the appellant. This appeal shall be determined on the issues as formulated in the brief of the appellant. Issues one and three will however be taken together.

Issue One

“Whether the learned trial Judge ought to have adopted the procedure applicable in criminal trial in hearing the Attorney-General’s request for the extradition of the appellant at the lower Court.”

Issue Three

“Whether the learned trial Judge was right in not insisting that the learned Attorney-General ought to have satisfied the court by affidavit evidence of all the preconditions necessary for the court to exercise its discretion in an extradition proceeding as listed in section 3 of the Extradition Act.”

The crux of the complaint of the appellant under these issues are the procedure adopted by the trial court and the quantum of the materials placed before the trial court by the office of the Hon. Attorney-General in support of the application.

It is the submission of the learned counsel for the appellant that the learned trial Judge failed to follow strictly the procedure for the arraignment of an accused person as provided for by section 9(1) of the Extradition Act.

The learned counsel states that the trial court should have adopted a procedure similar to that in a summary trial in a criminal matter. This, maintains the learned counsel, is the import of the phrase “as if’ used in section 9(1) of the Act.

To buttress this point, the learned counsel relies in the cases of N.N.P.C. v. Anwuta (2000) 13 NWLR (Pt. 684) page 363 at 377-378 and Savannah Bank (Nig.) Ltd. v. Ajilo (1989) 2 NWLR (Pt.97) page 305. The learned counsel commends the interpretation placed on the phrase “as if’ in the said cases. The Supreme Court in the two cases, cited the dictum of Lord Asquith on the construction of the “as if’ clause. By the said construction, the learned counsel contends that the learned trial Judge erred in law in failing to adopt full trial procedure as in the arraignment of an accused person in a criminal matter. It is the view of the learned counsel that the request of the Hon. Attorney-General, constitutes the process of the court which should have been read over and explained to the appellant who had been placed in the dock before the court. The learned counsel however concedes that no formal charge was placed before the trial court.

Following this procedure, the learned counsel continues, the appellant should then have had the charges read out to him and his plea taken. That plea, contends the learned counsel, is for the appellant to state whether or not he should be extradited as requested by the United States Embassy.

Having failed to adopt the said procedure, the learned counsel submits that the learned trial Judge thereby failed to comply with the provisions of section 9(1) of the Act. The procedure therefore was a nullity and of no legal consequence. Learned counsel urged us to quash the proceedings.

Equally objectionable to the appellant is the minimal affidavit evidence placed before the trial court. Counsel contends that the Hon. Attorney General should have also stated in the affidavit in support of the application that he had complied with all the conditions required as stated in section 3(1-7) of the Extradition Act. Failure to do this contends counsel, renders the application incompetent.

The learned counsel to the respondent submits to the contrary that section 9(1) of the Act relates to the jurisdiction and powers of the trial Judge rather than the procedure to be adopted in attending to the request placed before the court by the Hon. Attorney-General. The learned counsel submits that the procedure to be adopted in extradition proceedings is provided by sections 6(2) and 9(1) of the Extradition Act, Cap. 125 of the Laws of the Federation of Nigeria, 1990 as amended and is now Cap. E 25 LFN of 2004. Section 17 of Cap. 125, LFN also states the type of evidence to be received, which is purely affidavit evidence.

In order to fully comprehend and adequately address this appeal, it is imperative to peruse the relevant provisions of the legislation in respect of the subject matter.

First and foremost: – is there an extradition pact between Nigeria and the requesting state, the United States of America? There seems to be a consensus between the parties that there is an extradition agreement between the two countries. The Extradition (United States of America) order of 1967 published in the special gazette No. 23 Vol. 54 of the 13 April, 1967 is cited as the requisite legislation.

Other relevant statutes cited by both the learned counsel for the parties are as followings:

2. Extradition Act, Cap. 125, Laws of the Federation of Nigeria, 1990 now Cap. E 25 LFN 2004.

3. Evidence Act, Cap. 112, LFN, 1990 now Cap. E 14, LFN 2004.

4. The Criminal Procedure Act.

5. Legal Notice No. 33 of 1967.

6. The Immigration Act, Cap. 171, LFN, 1990.

Above all is the Constitution of the Federal Republic of Nigeria of 1999.

Since it is a common ground that an extradition agreement exists between the two countries, the next question to determine is the provisions of the said agreement and those of other related statutes. In the circumstance, section 9(1) of the Extradition Act eminently features in the argument of both parties. Section 9(1) of the Act provides as follows:

“When a fugitive criminal is brought before a magistrate on a warrant under section 7 of this Act, or when, in the case of a fugitive criminal brought before a magistrate on a provisional warrant under section 8 of this Act and remanded in pursuance of subsection (5) of the said section 8, an order of the Attorney-General under section 6 of this Act relating to that fugitive is received, the magistrate shall proceed with the case in the same manner, as near as may be, and shall have the same jurisdiction and powers, as if the fugitive were brought before him charged with an offence committed within his jurisdiction.”

To fully comprehend the provisions of section 9(1) of the Act, one must consider the purport of the Extradition Act. Section 1 of the Act 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 National Council of Ministers may by order published in the Federal Gazette apply this Act to that country.”

Thus, the purpose of the agreement is for the “surrender by each country to the other, of persons wanted for prosecution or punishment,” not for the trial on behalf of the one Country by the other. (Emphasis mine). In the circumstance, the submission of the learned counsel for the respondent seems more in consonance with the purport and spirit of the Extradition Act.

Thus, the reference in section 9(1) of the 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 order of the Attorney-General to surrender the alleged fugitive criminal to the requesting country.

The appellant was not standing trial before the trial court for the offence for which the extradition order is sought.

There was thus no legal requirement to follow full arraignment “rites” as in a criminal trial. The phrase “as if’ used in section 9(1) of the Act cannot be used as a panacea to place the appellant on trial in Nigeria for offences allegedly committed extra-territorially in the United States of America.

Next, was the Hon. Attorney-General required to satisfy the court by affidavit evidence that all preconditions listed in section 3 of the Extradition Act had been complied with?

The learned counsel to the appellant posits that the extradition procedure before the trial court is a criminal proceeding by the provisions of section 9(1) of the Act. The Hon. Attorney-General was therefore bound to satisfy the Court by credible evidence that all the conditions set out in subsections 1-6 of section 3 of the Extradition Act have been fulfilled. It is the view of the learned counsel that the procedure seeks to take away vested rights and must be construed strictly against the party seeking to take the advantage. (Refers Fasogbon v. Layade (1999) 11 NWLR (Pt. 628) page 543 at 556)

Counsel maintains that the learned trial Judge erred in law in failing to construe the provisions of section 3(1-7) strictly against the Attorney-General of the Federation. Citing pages 4, 5 and 6 of the records, and his submission on page 160 of the records for this appeal, the learned counsel submits that the Hon. Attorney-General failed to satisfy the court on some of the conditions listed in section 3 of the Act. The application should therefore not have been granted.

The response of the learned counsel to the respondent is that bringing the request to the trial court shows that the Hon. Attorney-General has satisfied himself that the conditions stated in section 3 of the Act have been met by the requesting country. The operative words in section 3(1-7), submits the learned counsel, are “if it appears … ” and “shall not be surrendered if satisfied ..,” which are indications that the Hon. Attorney-General has the discretion to decide. Section 174 of the 1999 Constitution of the Federal Republic of Nigeria is cited in support of the submission for the respondent.

The question of whether the Hon. Attorney-General had complied with the provisions of section 3(1-7) of the Act is a question of fact which can be brought to the attention of the trial court only by affidavit evidence. No amount of brilliant submission of Counsel can take the place of legal evidence (Refer: Bwanle Tapshang v. Deduk Lekret (2000) 13 NWLR (Pt. 684) page 381 at 388) No counter-affidavit was filed by the appellant.

The appellant did not deny that he had been served with the processes but he filed no process challenging the application of the Hon. Attorney-General. None of the depositions were controverted, no conflict therefore arose nor was there any application to examine any of the deponents upon conflict arising from the depositions in the affidavit. The postulations of the learned counsel to the appellant in the failure of the Hon. Attorney-General of the Federation to comply with the provisions of section 3(1-7) of the Act are therefore mere academic exercise of no legal value in the circumstance.

Further and as rightly contended by the learned counsel to the respondent, the Hon. Attorney-General was exercising his constitutional duty under section 174 of the 1999 Constitution. The learned trial Judge could not have turned inquisitorial, demanding of the Hon. Attorney-General evidence that he had carried out his statutory functions.

By the provisions of section 6(1) and (2) of the Act, it is the duty of the Hon. Attorney-General to receive the request for the surrender of a fugitive criminal in Nigeria. Section 6(2) of the Act reposes the discretion in the Hon. Attorney-General to signify to the court that such a request has been made and he does that only after he satisfies himself on the basis of the information accompanying the request, that the provisions of section 3(1-7) are met. Nothing in the Act gives the court the powers to question the discretion of the Hon. Attorney-General in those matters. The trial court was therefore right in presuming regularity in the performance of an official duty.

In the absence of any serious challenge to the proper exercise of discretion by the Hon. Attorney-General for the Federation, the Court must uphold the official integrity of the Hon. Attorney-General, and presume that he carried out his duties as prescribed by section 6(1) and (2) of the Act. There would thus have been no justification in requiring proof by affidavit evidence of the performance of such duties. The legal maxim is omnia praesumuntur rite et solemniter esse acta, while section 150(1) of the Evidence Act provides the statutory ancur of the presumption. Section 20 actually reposes the responsibility and powers to ascertain the conditionality for acceding to an extradition request on the Attorney-General not on the Court. By the provisions of the Act, the Hon. Attorney-General, who is the Chief Legal Officer of the Federal Republic of Nigeria, has the discretion to exercise the power. Once he has ascertained that there exists an offence which falls within the Extradition Act, and he so orders, the duty of the court is delineated, the court is circumscribed to question the exercise of discretion by the Hon. Attorney-General. Only upon cogent and compelling reasons challenging the proper exercise of such powers may the court inquire into the manner of its exercise.

The powers of the Attorney-General in this issue is similar in extent as when the Hon. Attorney-General initiates a criminal proceedings or enters a nolle prosequi in a criminal matter. The court does not question that exercise.

It has become a well guarded legacy that this Court does not undermine the doctrine of the separation of powers enshrined in the Constitution of the Federal Republic of Nigeria. (Refer: The State v. S.O. Ilori & Ors. (1983) All NLR page 84; (1983) 1 SCNLR 94.)

The discretion to accede to an extradition request is that of the Hon. Attorney-General of the Federation, not of the Court. (Refer: Sections 6 of the Extradition Act).

The role of the Court is to issue warrant and under take such other adjudicatory functions as are required to enhance the statutory powers of the Attorney-General. (Refer to section 7 of the Extradition Act).

Further, contrary to the opinion of the learned counsel to the appellant, the purpose of a hearing, which is infact purely at the discretion of the Hon. Attorney-General, is not to ask the fugitive criminal if he desires to be extradited, that would be ridiculous. The purpose is to determine whether the requisition made shows sufficient cause to warrant extradition. The duty to so determine is reposed in the Hon. Attorney-General of the Federation by section 6(1) and (2) of the Act, not in the fugitive accused. To hold otherwise would be ridiculous and would clearly negate the purpose of the extradition treaty which is to prevent the successful escape of a fugitive accused from trial and punishment for the alleged crimes committed in the requesting country.

The purpose of the hearing in the trial court upon the application of the Hon. 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 accused as the court would over an accused person 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. In the instant case, it is pending the surrender of the fugitive accused to the requesting country.

The learned trial Judge was therefore right in holding that the application of the Hon. Attorney-General cannot be equated with a criminal trial. (Refer page 178 of the records). It is not a criminal trial but a preliminary to such trial which shall take place where the offences are alleged to have been committed.

Issue Two

“Whether the learned trial Judge rightly interpreted section 20 of the Extradition Act in granting the request of the Attorney-General for extradition of the appellant.”

The learned counsel challenges the interpretation by the trial court, of word “may” as used in section 20 of the Extradition Act. It is the submission of the learned counsel for the appellant that the con of the usage of the word “may” in section 20(1) of the Act is mandatory and not permissive. The learned counsel opines that the word immediately after “may” which is “only” serves to restrict the instances which the court will grant an extradition request to “only” returnable offences. Section 20 (1) provides as follows:

“(1) A fugitive criminal may only be returned for a returnable offence.”

Subsection (2) defines returnable offence as an offence

“….which is punishable by imprisonment for two years or a greater penalty both in Nigeria as well as the Commonwealth country seeking his surrender.”

By the terms of this provision, counsel submits that the offences for which the appellant is sought Carry with them a minimum of one year imprisonment per the deposition made in support of the request for extradition. The learned counsel argues that it follows that the failure of the offences to carry a minimum of two years imprisonment in the United States, no matter what the maximum punishment stipulate, renders the said offences non-returnable. The appellant ought therefore to be discharged and the request refused.

The learned counsel for the appellant argues further that although section 20 of the Act specifically mentions the Commonwealth countries in respect of returnable offences, the United States of America would be included for the purpose only, of the application of the provisions of the Extradition Act. The learned counsel cites section 1 of the Act which makes the Act applicable to every country which has entered into an agreement with Nigeria for the surrender of a fugitive criminal. Counsel concludes that the learned trial Judge therefore erred in holding that the United States not being a Commonwealth country is not bound by the provisions of section 20(1) of the Act.

Conversely, the learned counsel to the respondent submits that the learned trial Judge rightly interpreted section 20 of the Act in holding that the minimum punishment prescribed for returnable offences is not mandatory but only permissive by virtue of section 20(1) of the Act. The learned counsel submits further that by the provisions of section 1(1), (2) and (3) of the Act, the Legal Notice No. 33 of 1967 (supra) which is the only document containing extradition agreement between Nigeria and United States of America does not prescribe any minimum sentence for the returnable offences listed in item 3 of the said order. The Act, maintains the learned counsel for the respondent, therefore applies to the United States of America subject to the provisions of the Legal Notice No. 33 of 1967 which has no provision of two years minimum sentence for returnable offences. Further that section 20 of the Act is inapplicable, the United States of America not being a Commonwealth country as provided for in the Act.

The learned counsel cites the case of Odiase v. Auchi Polytechnic (1998) 4 NWLR. (Pt. 546) page 477 to buttress its argument that section 20 of the Act does not apply to the United States since parties in an agreement are bound only by the terms of their agreement. In the instant case, the terms of the agreement are as stated in the Legal Notice No. 33 of 1967.

Extradition is the process of returning somebody upon request, accused of a crime by a different legal authority to that authority for trial or punishment. (Refer: page 170 dictionaries Law by L.B. Curzon, 6th Edition, 2002)

The right of one state (country in the present circumstance), to request of another, the extradition of a fugitive accused of crime, and the duty of the country in which the fugitive finds asylum to surrender the said fugitive, exist only when created by a treaty. Due to the divergence in the penal codes of the world, most nations give definite terms in treaties to their mutual obligations to extradite.

The extradition treaty between Nigeria and the United States of America is embodied in the Legal Notice No. 33 of 1967 published in the official Gazette No. 23 Vol. 54 of the 13th day of April, 1967, known as an Extradition (United States of America). Such treaties enumerate what offences the two nations consider extraditable. The general rule is that extraditable crimes must be those commonly recognised as malum in se (acts criminal by their very nature) and not those which are malum prohibitum (acts made crimes by statute). This, in most cases, explains why the type of crime and the punishment prescribed are included in the extradition treaty. By this principle also, it is generally regarded as an abuse of the terms of the treaty for a state to secure the surrender of a criminal for an extraditable offence and then to punish the person for an offence not included in the treaty. (Refer generally to “Extradition” “Microsoft” S. 2007 DVD.)

The essence of the provision in section 20(1) of the Act, for a minimum sentence of two years is to ensure that a fugitive is not surrendered on a trivial offence. An offence which carries a maximum sentence of over five years cannot by any stretch of the imagination be described as trivial. The offences for which the fugitive criminal is sought are not unknown to Nigeria neither are they, by our Penal Laws trivial in nature.

The nations of the world have, out of the need to make the world a safe place for its people, agreed to cooperate in curbing the excesses of suspected miscreants. The courts and law officers must not allow technicalities to frustrate this exercise.

Accordingly, I uphold the submission of the learned counsel for the respondent that section 1(3) of the Extradition Act applies to the United States of America subject to the provisions of the Legal Notice No. 33 of 1967.

Therein, the terms of the treaty state in item 3, the returnable offences for extradition between the two parties. The treaty prescribes no minimum sentence for the returnable offences listed.

The provisions of section 20(1) of the Act cannot therefore be interpreted to include the United States of America, the said section having specifically stated the group of nations to which the section applies. If it were otherwise, the Act would have so specified.

All the issues formulated, by the appellant in this appeal having each collapsed in total submission to the superior case made out by the respondent, this appeal is without merit. It is accordingly hereby dismissed.

The decision of the learned trial Judge is affirmed.

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Other Citations: (2007)LCN/2249(CA)