ANUEBUNWA v. A.G.F (2020)

ANUEBUNWA v. A.G.F

(2020)LCN/14805(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, November 06, 2020

CA/A/CV/387/2020

RATIO

APPLICATION: IMPORTANCE OF AFFIDAVIT IN AN INTERLOCUTORY APPLICATION

What a pleading is to a party is what an affidavit is to a party in an interlocutory application or even in certain substantive or originating processes such as the one at hand. Therefore, any document attached to an affidavit is part of the affidavit and must be considered as such and must be read and considered together. See the case of UNIVERSITY OF ILORIN VS. OYOLANA (2001) FWLR (PT. 83) 2193 and GBERE VS. ALLI OWE (2000) 11 NWLR (PT. 678).
The documents once so attached are thereby tendered in evidence, legally speaking. See the case of REGDE TRUSTEES OF TIPPING TRAILER OWNERS UNION VS. N. U. M. W. (2012) ALL FWLR (PT. 627) 764 AT 773.

Documents attached to an affidavit therefore constitute evidence on which the Court can act. Documents attached to an affidavit being evidence upon which a Court can act must therefore pass the admissibility test. PER IDRIS, J.C.A.

EVIDENCE: ADMISSIBILITY OF A DOCUMENT IN A CIVIL CASE

Although admissibility of a document in a civil case is one thing while the question of weight to be attached to the document when it is admitted is another. There are three criteria that govern admissibility which are that: the document is pleaded; it is relevant and admissible in law. See the case of OKONJI VS. NJOKANMA (1999) 12 SCNJ and OKOYE OBIASO (2010) ALL FWLR (PT. 526) 489. PER IDRIS, J.C.A.

DOCUMENTARY EVIDENCE: REQUIREMENTS FOR THE ADMISSIBILITY OF COMPUTER-GENERATED DOCUMENTS

It must be noted that pleading a document and the relevancy of the document in a civil case such as this is not enough and in the case of admissibility of computer-generated documents, the conditions laid down by the Evidence Act must be fulfilled before it will be admissible in evidence.
The Preamble to the Evidence Act, 2011 states thus:
“AN ACT TO REPEAL THE EVIDENCE ACT CAP E14, LAWS OF THE FEDERATION OF NIGERIA, AND ENACT A NEW EVIDENCE ACT WHICH SHALL APPLY TO ALL JUDJCJAL PROCEEDINGS OR BEFORE COURTS IN NIGERIA AND FOR RELATED MATTERS.”
(Emphasis Mine).
Section 2 of the Evidence Act provides:
“For the avoidance of doubt, all evidence given in accordance with Section 1 shall, unless excluded in accordance with this or any other Act, or any other legislation validly in force in Nigeria, be admissible in judicial proceedings to which this Act applies: Provided that admissibility of such evidence shall be subject to all such conditions as may be specified in each case by or under this Act.”
Section 3 provides further thus:
“Nothing in this Act shall prejudice the admissibility of any evidence that is made admissible by any other legislation in force in Nigeria.”
The above reproduced preamble and Sections 2 and 3 of the Evidence Act, 2011 shows that the Evidence Act governs admissibility of evidence except as excluded by any other legislation in force.

Assuming but not conceding that Section 3 has excused the application of Section 17 of the Extradition Act as relied on by the Respondent and the Court as it relates to admissibility of Evidence, the said Section only provides for authentication of documents to be received in an extradition proceeding and this is a different ball game from admissibility of documents. For a document to be admissible, proper foundation must have been laid to enable such document to be admitted in evidence. Even if authentication and admissibility should be taken as one and same, the issue of the admissibility of an authenticated computer generated document is different from that which is required to be done for documents in extradition proceedings as provided for under the Extradition Act and which Section 17 of the Extradition Act did not provide for.
This has brought us back to the issue at hand which is the admissibility of the contested documents attached to the application for extradition by the Respondent, documents which are computer generated evidence.
Admissibility of computer-generated evidence is governed by Section 84 of the Evidence Act, 2011.

Section 84(1) of the Evidence Act provides thus:
“In any proceeding, a statement in a document 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.” (Emphasis Mine).
Having in mind my views as already postulated above in relation to admissibility/authentication of documents and considering Section 17 of the Extradition Act as well, it is clear that by the reproduced Section 84(1) of the Evidence Act above, the section applies to extradition proceedings as well and thus for any evidence generated by a computer to be admissible, it has to comply with the provisions of the Section 84(2) of the Evidence Act which provides as follows:
“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.”
Section 84(4) went further to state what is required where it is desired to give a statement in evidence of a computer-generated evidence thus:
4) In any proceeding where it is desired to give a statement in evidence by virtue of this section, a certificate –
(a) identifying the document containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that document as may be appropriate for the purpose of showing that the document was produced by a computer.
(i) dealing with any of the matters to which the conditions mentioned in Subsection (2) above relate, and purporting to be signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities, as the case may be, shall be evidence of the matter stated in the certificate; and for the purpose of this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.” PER IDRIS, J.C.A.
PRELIMINARY OBJECTION: NATURE OF A PRELIMINARY OBJECTION

A preliminary objection is an objection taken before the hearing. It is also an objection against the regularity of a Court process, be it the main suit or a process like a motion or any other process of Court. Such objection must be one that if upheld or sustained, will terminate the proceedings it is being raised against. See the case of KWARI VS. RAGO (2000) FWLR (PT. 22) 1129 CA.
In the case of WOHEREM VS. EMEREUWA (2004) ALL FWLR (PT. 221) 1570 SC, the Supreme Court held thus:
“A matter therefore which is raised by way of a preliminary point but which may be answered if evidence is adduced cannot be properly raised as a preliminary Objection. Such a matter is more properly answered by evidence during trial and shall constitute an issue for determination at the trial.”
In the case of EGE SHIPPING & TRADING INDUSTRY LIMITED VS. TIGRIS INTERNATIONAL CORPORATION (1999) 14 NWLR (PT. 637) 70, the Supreme Court held that where a defendant is disputing an averment of fact made in the Plaintiff’s statement of claim, the proper way to do so is not to file an application for the matter to be dismissed in limine, but to file a defence traversing that averment of fact and thereafter adducing evidence at the trial to enable the Court make some findings.
A Court is under a solemn duty to hear every preliminary objection filed before it, no matter how patently weak it may appear. See the case of OKOLO VS. UBN LIMITED (2004) ALL FWLR (PT. 197). PER IDRIS, J.C.A.
PRELIMINARY OBJECTION: GROUNDS FOR RAISING A PRELIMINARY OBJECTION

A preliminary objection is usually raised to attack the jurisdiction or competence of a Court to adjudicate over any matter. There are various grounds for raising a preliminary objection in an action which includes the following:
1. On grounds of locus standi
2. Where the suit discloses no cause of action
3. Court lacks the jurisdiction to entertain a matter
4. Claimant’s process is defective
5. Lack of fulfilment of condition precedent to institute an action
6. That the action is statute barred.
7. That the party suing or being sued is not a juristic person.
It is thus obvious that a preliminary objection is used to attack the suit itself especially as to whether it should stand i.e. whether it can be sustained as it was brought or whether it cannot be sustained as it is. PER IDRIS, J.C.A.

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Mohammed Mustapha Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

PRINCEWILL UGONNA ANUEBUNWA APPELANT(S)

And

ATTORNEY GENERAL OF THE FEDERATION RESPONDENT(S)

MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): By an application dated and filed on the 14th May, 2018, the Respondent as Applicant at the trial Court applied for the extradition of the Appellant as Respondent to the United States of America to answer to a 2 count indictment in Case No: S6 16 Cr.575 (PAC) and filed on 7th December, 2017 in the United States District Court Southern District of New York, United States of America.

The application was supported by a Five (5) paragraph affidavit deposed to by one Esho Joyce Damilola. Nine (9) Exhibits were attached to the said affidavit in support of the application.

It is contained in the application of the Respondent at the Trial Court that the United States of America has submitted a request to the Respondent for the extradition of the Appellant and that the said request was accompanied by documents which are attached to the affidavit in support of the application.

The Appellant at the Trial Court, filed a Counter Affidavit to the said application of the Respondent dated and filed on the 4th of March, 2020 contained in page 204 of the Record of Appeal and a written address in support.

The Appellant also filed a Notice of Preliminary Objection dated and filed 4th March, 2020 challenging exhibits attached to the affidavit in support of the Respondent’s application.

On the other hand, the Respondent filed a Reply to the said Notice of Preliminary Objection dated and filed on 23rd of March, 2020.

After considering the processes and the arguments of Counsel, the Learned Trial Judge, Honourable Justice I. E. Ekwo delivered judgment in the Suit No. FHC/ABJ/CS/505/2018 on the 1st June, 2020 wherein the trial judge granted judgment in favour of the Respondent.

Dissatisfied with the judgment of the trial Court, the Appellant filed a Notice of Appeal dated and filed on the 10th June, 2020 comprising of Eight (8) grounds of appeal.
Parties to the appeal before this Court filed and exchanged their respective briefs of argument.

The Appellant filed his brief of argument dated and filed on 22nd June, 2020 settled by its Counsel, Daniel A. Agada and raised Two (2) issues for determination. The issues are:
1. Whether Section 84 of the Evidence Act 2011 does not apply to extradition proceedings and the learned

Trial Judge was right in dismissing the Notice of Preliminary Objections filed by the Appellant to expunge the inadmissible paragraphs of the affidavit and Exhibits A-D in support of the extradition Application?
(Ground iv)
2. Whether the Learned Trial Judge was right in granting the extradition application and ordering the surrender of the Appellant for trial in the United States of America?
(Ground ii, iii, v, vi and vii)

On Issue One, the Appellant’s Counsel argued that the learned Trial Judge was wrong when he dismissed the Notice of Preliminary Objections on the grounds that Preliminary Objections can only be used to challenge the jurisdiction of the Court or the competence of the suit.

The Appellant’s Counsel also argued that the decision of the Trial Court at page 329 of the Record of Appeal, that the issue of admissible evidence was premature and that it may go to the root of the trial of the Respondent but certainly not in the proceeding was a clear demonstration of the fact that the trial judge did not appreciate that the substance of the affidavit evidence before him was important to the determination of the extradition application.

The Appellant’s Counsel also argued that an Applicant seeking extradition of a fugitive must show a prima facie case sufficient to satisfy a Court that the Respondent should be surrendered as requested in the extradition application. On this point, counsel referred the Court to Section 9(2) and Section 9(1) of the Extradition Act.

The Appellant’s Counsel further argued that his objection to the affidavit was in fact a challenge to the competence of the extradition application and the extradition application would have been incompetent without an affidavit in support. Counsel also argued that in the same vein, if there is an affidavit in support but contains inadmissible evidence, the same Notice of Objections can be used to challenge the affidavit and this is the appropriate procedure taken in the case.

The Appellant’s Counsel argued that the trial judge did not consider or did not properly consider the merit of the Preliminary Objection.

The Appellant’s Counsel also argued that the statement and depositions in paragraphs 24, 25, 26, 27, 28 and 30 of the affidavit of Andrew K. Chan and paragraphs 16, 17, 18, 19, 20, 21, 22, 23,

24, 25, 26 and 27 of the affidavit of Stephen Fullington attached to the affidavit in support of the application are contents of documents generated from computer or computers which can only be admissible in any proceeding including extradition proceedings if they meet the condition set out in Section 84(2) of the Evidence Act. On this point, counsel cited the case of COLLINS COMMERMEX NIGERIA LIMITED & ANOR VS. SKYE BANK PLC 2019 LPELR – 46892 CA.

The Appellant’s Counsel also argued that Exhibits D1, D2, D3 and D4 attached to the affidavit of Stephen Fullington in support of the extradition request are inadmissible under the Evidence Act, 2011 by virtue of Section 84(4).

The Appellant’s Counsel also argued that the proper step for the Court to take is to expunge the aforesaid paragraphs of the affidavit and Exhibits D1 – D4.

The Appellant’s Counsel further submitted that the certification by REX W TILLERSON is only a certification of the seal of the department of justice and does not cure the noncompliance with Sections 84 of the Evidence Act.

In conclusion, the Appellant’s Counsel argued that there was no justification for the

learned trial judge to ignore or side track the provisions of Section 84 of the Evidence Act in the determination of the extradition application before him and it has brought about the violation of the right to fair hearing vested in the Appellant by the Constitution.

The Appellant’s Counsel urged this Court to resolve this issue against the Respondent and expunge the paragraphs of the affidavit and the exhibits complained of.

On Issue two, the Appellant’s Counsel argued that the Appellant’s defence of mistaken identity and that he is not the person sought to be extradited was not properly considered by the trial judge. The Appellant referred this Court to his Counter Affidavit at Page 205 of the Record of Appeal. The Appellant’s Counsel further argued that the trial Court held that the onus of proof that the Appellant is not the person sought to be extradited is on the Appellant which is not just an error of law but a prejudicial decision against the Appellant.

The Appellant’s Counsel further argued that the Appellant vehemently contended at the trial Court that he was not the fugitive for whom a warrant of arrest was issued by the United State

of America but on account of misplacement of onus of proof, the Learned trial judge failed to appreciate the need for the Applicant to establish by cogent established evidence that the Appellant was the intended fugitive and that has occasioned a miscarriage of justice against the Appellant and this appeal on that account, deserves to succeed.

The Appellant’s Counsel argued that the trial judge was wrong in his application of Section 17 of the Extradition Act and refused to appreciate that an extradition application is a trial or hearing that must succeed or fail on the evidence in the affidavit.

In conclusion, the Appellant’s Counsel argued that the trial judge did not appreciate the import of Section 84 of the Evidence Act as to whether it applies to the exhibits sought to be used as evidence to secure the extradition of a fugitive but rather described the argument by the Appellant as an attitude to cause delay and a strange and ingenious invention by the Appellant to cause confusion.

Counsel further argued that it was clear that the trial judge was more interested in the speed with which to conclude the proceedings than doing justice to the

parties. The Appellant’s Counsel therefore urged this Court to invoke its jurisdiction in Section 16 of the Court of Appeal Act.

On the other hand, the Respondent filed his brief of argument dated and filed on 30th June, 2020 settled by its Counsel, Akutah Pius Ukeyima and raised Three (3) issues for determination. The issues are:
1. Whether the Trial Court was right in dismissing the Notice of Preliminary Objection used to challenge admissibility of affidavit evidence.
2. Whether the Trial Court was right to have held that the documents annexed in the extradition package are admissible in evidence notwithstanding the provision of Section 84 of the Evidence Act, 2011.
3. Whether the Trial Court was right to have order the surrender of the fugitive criminal to be extradited to the United State of America.

On Issue One, the Respondent’s Counsel argued that it is a settled principle of law that the sole purpose of a Preliminary Objection is to challenge the competence of an action and or adjudicatory power of a Court and not an evidence per se. Therefore, the practice of the Appellant at the lower Court is strange and not tenable in law

which is tantamount to abuse of judicial process which fate is nothing but dismissal. Counsel cited the case of MALLAM & ORS VS. REGISTERED TRUSTEES OF IPMAN (2016) LPELR – 41606 (CA).

In conclusion, the Respondent’s Counsel submitted that the trial judge was right to have dismissed the Appellant’s Notice of Preliminary Objection which principal contention was the admissibility of affidavit evidence annexed to the application.

On Issue Two, the Respondent’s Counsel argued that extradition proceedings is a special proceeding that is essentially governed by the Extradition Act and Federal High Court (Extradition Proceedings) Rules 2015.

The Respondent’s Counsel further argued that the admissibility or otherwise of documents for extradition proceeding is explicitly provided for in the Extradition Act CAP E25 LFN 2004. Counsel referred this Court to Section 17 of the said Act and also argued that it is evident from the provision that the admissibility or otherwise of duly authenticated documents in support of extradition request is specifically provided under the Act.

The Respondent’s Counsel also argued that Section 84 of the Evidence Act CAP E25 LFN 2004

is of general application with respect to admissibility of computer-generated evidence in Nigeria, which does not cover extradition proceedings with regard to duly authenticated supporting documents in the extradition application.

In conclusion, the Respondent’s Counsel argued that the submission of the Appellant at pages 7 – 12 of the Appellant’s Brief of argument is a total misconception of the law as Section 17(1) of the Extradition Act does not welcome proof upon being duly authenticated.

On Issue Three, the Respondent’s Counsel argued that the whole essence of extradition is to diligently honour international law and international or multilateral treaty obligation in mutual respect for agreement and treaties that are signed and ratified. See Section 19(d) of the Constitution. Counsel referred this Court to Order V Rules 1 Federal High Court (Extradition Proceedings) Rules 2015 and Sections 3, 5, 6 and 9 of the Extradition Act CAP E25 LFN 2004.

The Respondent’s Counsel also argued that an appeal is not a fresh suit and an appellate court should not interfere with the concurrent findings of the trial Court unless

it is perverse. Counsel referred this Court to the case of ADENIYI & ANOR VS. TINA GEORGE INDUSTRIES LTD & ORS (2019) LPELR – 48891 (SC).

The Respondent’s Counsel argued that the Appellant in paragraphs 6.2, 6.3 and 6.4 of the Appellant’s Brief of Argument is dwelling on the skin colour rather than the origin under which he is described as a basis of the defence of mistaken identity and that he did not even raise the issue of mistaken identity under Section 6A of the Extradition (Amendment) Act, 2018. Counsel further argued that the identity of the Appellant is not an issue but the complaint is the description given to him as a “black male with black hair, dark skin and brown eyes” since he is a light skinned person.

The Respondent’s Counsel also argued that the Appellant did not appreciate the intendment of the legislature as regard the import of Section 6A of the Extradition (Amendment) Act, 2018 which mandate the judex to discharge the Defendant where no satisfactory evidence as to the identity of the fugitive criminal is led by the Applicant or requesting state.

In conclusion, the Respondent’s Counsel submits that the surrender

order made by the trial Court was fully in conformity with the extant laws of extradition and urged this Court to so hold and resolve the issue in favour of the Respondent.

The Appellant filed a Reply Brief of Argument dated and filed on the 9th of July, 2020 and settled by its Counsel Daniel Agada Esq., wherein he responded to the issues raised in the Respondent’s Brief of Argument.

The Appellant’s Counsel argued that this Court should discountenance the three issues formulated and argued in the Respondent’s Brief of Argument on the basis that the issues are not linked to the Grounds of Appeal as mandated by the Appellate Practice and Procedure.

The Appellant’s Counsel also argued in Response to Issue One raised by the Respondent’s Counsel that the Appellant’s intention was to scuttle the hearing of the extradition proceedings for non-compliance with the relevant laws and that was what he did by the Notice of Preliminary Objection filed to challenge non-compliance with the Evidence Act. Counsel further argued that if the trial judge had sustained the objection to the relevant paragraphs of the affidavit in support of the extradition application,

it would become clear that there was no evidential basis for the grant of the order sought that would have consequently led to the striking out of the extradition application on the basis that it was not initiated by due process of law.

In response to Issue Two, the Appellant’s Counsel argued that the impression given by the Respondent that the Extradition Act and the Federal High Court (Extradition Proceedings) Rules 2015 are the only relevant or applicable statutes in extradition proceedings is incorrect and untenable in law.

The Appellant’s Counsel argued that Section 17 of the Extradition Act relied upon by the Respondent belies the postulations of the Respondent as it is clear that Section 17 is not exhaustive for purposes of the requisite authentication and that for a document to be taken as duly authenticated, it must, aside from compliance with Section 17, be authenticated in any other manner for the time being provided by law.

The Appellant’s Counsel further argued that this brings to bare the provision of Section 84 of the Evidence Act, 2011 (as amended) which provides for the procedure for authentication of computer-generated

documents as a prelude to admissibility in evidence which is also mandatory.

In response to Issue Three, the Appellant’s counsel argued that the grant of a surrender order of a citizen is not a judicial discretionary power or duty to be exercised perfunctorily. Rather, it is one that must be exercised judicially and judiciously on established principles.

The Appellant’s Counsel also argued that the argument of Respondent’s Counsel at paragraph 4.34 of the Respondent Brief of Argument that this Court will not interfere with concurrent findings of Court is unfathomable as it is clear enough that there have been no concurrent findings on any matter in this case and the case of ADENIYI & ANOR VS. TINA GEORGE cited by the Respondent in this regard is inapposite.

The Appellant’s Counsel also argued that the argument of the Respondent’s Counsel in paragraph 4.3.6 that the identity of the Appellant is not in issue is shocking as the trial Court did not resolve this issue and did not take judicial notice of the Appellant and upon all these, the trial judge shifted the onus of proof on the Appellant contrary to the relevant legislation.

The Appellant’s Counsel further argued that it is a judicial blunder that this Court cannot overlook.

In conclusion, the Appellant’s Counsel urged this Court to discountenance the entire submissions of the Respondent who obviously has no response to the many weighty points of law raised in the Appellant’s Brief of Argument.

Having summarized the arguments of counsel, I wish to adopt the issues raised by the Appellant herein, and will address the issues thereon:
1. Whether Section 84 of the Evidence Act 2011 does not apply to extradition proceedings and the learned Trial Judge was right in dismissing the Notice of Preliminary Objections filed by the Appellant to expunge the inadmissible paragraphs of the affidavit and Exhibits A – D in support of the extradition Application?
2. Whether the Learned Trial Judge was right in granting the extradition application and ordering the surrender of the Appellant for trial in the United States of America?

ISSUE ONE
Whether Section 84 of the Evidence Act 2011 does not apply to extradition proceedings and the learned Trial Judge was right in dismissing the Notice of Preliminary Objections

filed by the Appellant to expunge the inadmissible paragraphs of the affidavit and Exhibits A – D in support of the extradition Application?

From this issue, there are two points of argument thus:
1. Whether Section 84 of the Evidence Act does not apply to extradition Proceedings.
2. Whether the learned Trial Judge was right in dismissing the Notice of Preliminary Objections filed by the Appellant to expunge the inadmissible paragraphs of the affidavit and Exhibits A – D in support of the extradition Application?

Whether Section 84 of the Evidence Act does not apply to extradition Proceedings
The whole essence of an extradition proceeding like the trial judge has said in page 326 of the Record of Appeal is for the Applicant to establish by credible evidence, that is by producing to the judge in the case of a fugitive criminal accused of an offence claimed to be an extradition offence, a warrant issued outside Nigeria authorizing the arrest of the fugitive.

The Appellant’s Counsel has argued that in trying to satisfy Section 9(1) and (2) of the Extradition Act, the Respondent at the trial Court attached documents to the

affidavit in support of the extradition application which contained inadmissible evidence under Section 84 of the Evidence Act, 2011.

The Appellant’s Counsel also mentioned the specific paragraphs of the affidavit and the documents attached to the application for extradition which he referred to be paragraphs 24, 25, 26, 27, 28 and 30 of the affidavits of Andrew K. Chan and paragraphs 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26 and 27 of the affidavit of Stephen Fullington and Exhibits D1, D2, D3 and D4 attached to the affidavit of Stephen Fullington (all are documents attached to the affidavit in support of the extradition application) can only be admissible in law when they meet the requirements of Section 84(2) of the Evidence Act, 2011.

The Respondent’s Counsel on the other hand has argued that the admissibility or otherwise of duly authenticated documents in support of extradition request in extradition proceedings is specifically provided for under Section 17 of the Extradition Act CAP E25 LFN 2004 as against the Evidence Act.

Even the trial Court at page 329 of the Record of Appeal had stated that the requirements for extradition

are as he had stated therein in his judgment and further went on to hold that he is satisfied with the evidence of the Respondent which is in compliance with Section 17 (1) (a) and (3) (a) and (b), and (4) of the Extradition Act and therefore relied on same.

Now, the issue under consideration is whether Section 84 of the Evidence Act, 2011 (as amended) applies to extradition proceedings.

Before I deal with this issue at hand, it is important I talk about affidavits and documents attached to same.

</br<>

I have looked at the application of the Respondent and the said documents challenged by the Appellant were pleaded in the affidavit in support of the application for extradition and relevant to the instant proceeding but the admissibility of the documents attached to the affidavit is now under contest.
It must be noted that pleading a document and the relevancy of the document in a civil case such as this is not enough and in the case of admissibility of computer-generated documents, the conditions laid down by the Evidence Act must be

fulfilled before it will be admissible in evidence.
The Preamble to the Evidence Act, 2011 states thus:
“AN ACT TO REPEAL THE EVIDENCE ACT CAP E14, LAWS OF THE FEDERATION OF NIGERIA, AND ENACT A NEW EVIDENCE ACT WHICH SHALL APPLY TO ALL JUDJCJAL PROCEEDINGS OR BEFORE COURTS IN NIGERIA AND FOR RELATED MATTERS.”
(Emphasis Mine).
Section 2 of the Evidence Act provides:
“For the avoidance of doubt, all evidence given in accordance with Section 1 shall, unless excluded in accordance with this or any other Act, or any other legislation validly in force in Nigeria, be admissible in judicial proceedings to which this Act applies: Provided that admissibility of such evidence shall be subject to all such conditions as may be specified in each case by or under this Act.”
Section 3 provides further thus:
“Nothing in this Act shall prejudice the admissibility of any evidence that is made admissible by any other legislation in force in Nigeria.”
The above reproduced preamble and Sections 2 and 3 of the Evidence Act, 2011 shows that the Evidence Act governs admissibility of evidence except as excluded by any other legislation in force.

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.”
Section 84(4) went further to state what is required where it is desired to give a statement in evidence of a computer-generated evidence thus:
4) In any proceeding where it is desired to give a statement in evidence by virtue of this section, a certificate –
(a) identifying the

document containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that document as may be appropriate for the purpose of showing that the document was produced by a computer.
(i) dealing with any of the matters to which the conditions mentioned in Subsection (2) above relate, and purporting to be signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities, as the case may be, shall be evidence of the matter stated in the certificate; and for the purpose of this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.”
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.
From the totality of my findings above, it is clear that

the trial Court failed to apply the law or probably did not appreciate the application of the law of evidence as it applies to the application for extradition as it is evident that Section 84 of the Evidence Act applies to extradition proceedings. This issue is hereby resolved in favour of the Appellant.

Whether the learned Trial Judge was right in dismissing the Notice of Preliminary Objection filed by the Appellant to expunge the inadmissible paragraphs of the affidavit and Exhibits A – D in support of the extradition Application?

The Appellant’s Counsel argued that his objection to the affidavit was in fact a challenge to the competence of the extradition application and just as the application would be incompetent without an affidavit, if there is an affidavit in support but contains inadmissible evidence, the same Notice of Objection can be used to challenge the affidavit which is the appropriate position taken in this case.

The Appellant’s Counsel further argued that the trial judge having dismissed the Notice of Preliminary Objection did not properly consider the merit of the objection.

The Appellant’s Counsel has also argued

that the paragraphs of the affidavit exhibited in the affidavit in support of the extradition application contended in the Notice of Preliminary Objection are contents of documents produced by a computer, Exhibits D1, D2, D3 and D4 are documents produced by a computer, the contents of documents deposed to in D1, D2, D3 and D4 do not meet the conditions specified in Section 84(2) (a) – (d) of the Evidence Act, Exhibits D1, D2, D3 and D4 are documents within the meaning of Section 254 of the Evidence Act and so must meet the conditions stated in Section 84(2) (a d) of the Evidence Act, no certificate pursuant to Section 84(4) of the Evidence Act accompanied the depositions in the said paragraphs and Exhibits D1, D2, D3 and D4 and that the said paragraphs of the affidavit and the attachments are inadmissible and must be expunged.

First at this point, it would be important to consider the purpose of a Notice of Preliminary Objection but before then it is also important to take a look at the grounds upon which the Notice of Preliminary Objection was brought at the trial Court.

The grounds upon which the Notice of Preliminary Objection was brought by

the Appellant at the Trial Court are as contained in page 214 of the Record of Appeal thus:
1. Paragraphs 24, 25, 26, 27, 28 and 30 of the affidavit of Andrew K Chan and Paragraph 16, 17, 18, 19, 20, 21, 22, 23, 24, 25,26 and 27 of the affidavit of Stephen Fullington both attached to the affidavit in support of the Extradition application are contents of documents produced by a computer.
2. Exhibits D1, D2, D3 and D4 are documents produced by a computer.
3. The contents of the documents deposed to in paragraphs aforesaid do not meet the conditions specified in Section 84 (2) (a-d).
4. Exhibits D1, D2, D3 and D4 are documents within the meaning of Section 254 of the Evidence Act and so must meet condition stated in Section 84(2) (a-d).
5. No certificate pursuant to 84(4) of the Evidence Act has accompanied the depositions in the said paragraphs and Exhibit D1 – D4.
6. The said paragraphs of the affidavits and the attachments are inadmissible and be expunged.

From the grounds upon which the Notice of Preliminary objection is being brought as reproduced above, it is clear that the Appellant’s contention is the competence of the

affidavit in support of the extradition application as it was argued that the exhibits attached to the affidavit in support of the extradition application does not comply with Section 84 of the Evidence Act.

What then is the purpose of a Notice of Preliminary Objection, can it be used as in the case at hand i.e. to challenge the competence of the exhibits attached to the extradition application for none compliance with the provisions of Section 84 of the Evidence Act?

answered by evidence during trial and shall constitute an issue for determination at the trial.”
In the case of EGE SHIPPING & TRADING INDUSTRY LIMITED VS. TIGRIS INTERNATIONAL CORPORATION (1999) 14 NWLR (PT. 637) 70, the Supreme Court held that where a defendant is disputing an averment of fact made in the Plaintiff’s statement of claim, the proper way to do so is not to file an application for the matter to be dismissed in limine, but to file a defence traversing that averment of fact and thereafter adducing evidence at the trial to enable the Court make some findings.
A Court is under a solemn duty to hear every preliminary objection filed before it, no matter how patently weak it may appear. See the case of OKOLO VS. UBN LIMITED (2004) ALL FWLR (PT. 197).
A close look at the Record of appeal particularly pages 295 – 297 reveals that on the 11 th May, 2020, the trial Court heard the preliminary objection filed by the Appellant and pages 318 – 320 reveals that in giving his judgment, the trial judge also determined the said preliminary objection.
Also putting my examination of the purpose of a preliminary objection which I had done

through the authorities above, into consideration, it is clear that it is not in every situation that a preliminary objection can be filed.
A preliminary objection is usually raised to attack the jurisdiction or competence of a Court to adjudicate over any matter. There are various grounds for raising a preliminary objection in an action which includes the following:
1. On grounds of locus standi
2. Where the suit discloses no cause of action
3. Court lacks the jurisdiction to entertain a matter
4. Claimant’s process is defective
5. Lack of fulfilment of condition precedent to institute an action
6. That the action is statute barred.
7. That the party suing or being sued is not a juristic person.
It is thus obvious that a preliminary objection is used to attack the suit itself especially as to whether it should stand i.e. whether it can be sustained as it was brought or whether it cannot be sustained as it is.
Is it therefore proper to object to a paragraph of an affidavit, or a document exhibited in an affidavit, before the substantive action is heard or before it is known to what use document would be put?

I think not. In my view, objection on such grounds should be brought by filing a counter affidavit to the paragraphs of the affidavit and exhibits attached so contended and not by filing a preliminary objection as in this instant case.
The application (Preliminary Objection) filed by the Appellant at the trial Court is misconceived. It would be a bad example to decide the question of admissibility at a preliminary stage.
On this note, I see every reason and agree firmly with the decision of the Learned Trial Judge in dismissing the preliminary objection filed by the Appellant at the trial Court and I see no reason why the said preliminary objection should not have been dismissed.
All the Appellant should have done was to file a counter affidavit to the paragraphs in the affidavit in support of the application for extradition to which they contend and in opposition to the Exhibits which they complained were inadmissible.
In the case of THE HONDA PLACE LTD VS. GLOBE MOTOR HOLDINGS NIGERIA LTD (2005) LPELR – 3180 (SC), the Court held per Edozie, JSC at (P. 33, Paras. B – E) inter alia:
“The position of the law is that when in a

situation in which facts are provable by affidavit, one of the parties deposes to certain facts, his adversary has a duty to swear to an affidavit to the contrary, if he disputes the facts. Where such a party fails to swear to an affidavit to controvert such facts, they may be regarded as duly established. See Agbaje v. Ibru Sea Foods (1972) 5 SC 50 at 55; Alagbe v. Abimbola (1978) 2 SC 39 at 40; Ajomale v. Yaduat (No. 2) (1991) 5 NWLR (Pt. 191) 266.”
The purpose of a counter affidavit is to place the defence of the deponent as well as deny the depositions in the affidavit it seeks to counter. See the case ofP.A.S. & T. A. LTD VS. BABATUNDE (2008) 8 NWLR (PT. 1089) 267 AT 292, PARAS. E – F.

In addition to my own findings on this point, I hereby uphold the decision of the Learned trial judge on this point. This point is hereby resolved in favour of the Respondent.

ISSUE TWO
Whether the Learned Trial Judge was right in granting the extradition application and ordering the surrender of the Appellant for trial in the United States of America?

Having considered the application of Section 84 in an extradition proceeding like this

one as I have done under Issue one, it is now important to address the issue of the mistaken identity of the Appellant at the trial Court which the Appellant’s Counsel has argued was raised at the trial Court.

The Appellant’s Counsel had argued that there was wrong consideration of the Appellant’s defence of mistaken identity. Counsel argued that despite facts stated in his affidavit contained at page 205 of the Record of Appeal especially at paragraph 9, 11, 15, 16 that he was not the person sought to be extradited and that the description of the fugitive in paragraph 25 of the affidavit of Stephen Fullington attached to the affidavit in support of the extradition proceeding did not fit his personality.

Counsel also submitted that the trial Court failed to properly evaluate the evidence before it as regards the identity of the fugitive.

The Respondent on the other hand argued that the Appellant at the trial Court, did not raise the issue of mistaken identity under Section 6A of the Extradition (Amendment) Act, 2018 which mandates a judex to discharge the Defendant where no satisfactory evidence as to identity of the fugitive criminal is led by the Applicant or requesting state.

At page 327 of the record of proceedings, the trial Court held that 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.

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 has been 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 his Counter Affidavit contained at page 205 of the Record of Appeal especially at paragraphs 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 clearly rested on the Respondent. And this is by an interpretation of Section 131(1) of the Evidence Act, 2011.
It is trite law that he who asserts must prove the correctness of his assertion.
At this point, I will also introduce Section 6A of the Extradition (Amendment) Act, 2018 which the Respondent’s Counsel has referred this Court to. Let me even assume but not without conceding that the said provision “mandates the judex to discharge the Defendant where no satisfactory evidence as to the identity of the fugitive criminal is led by the Applicant or requesting state.” Would the trial Court not have acted in error, as the duty from this provision has put a heavy burden on the Respondent or the requesting authority? Can the Respondent in this case say that he has been able to discharge this burden especially when the

Appellant has said that he does not fit into the description given of the fugitive criminal by the Respondent in his application and also by the Requesting authority?
To untie the puzzle, it needs reiteration that the burden of proof in civil cases has two distinct facets: the first is the burden of proof as a matter of law and the pleadings normally termed as the legal burden or the burden of establishing a case; the second is the burden of proof in the sense of adducing evidence usually described as the evidential burden. While the legal burden of proof is always static and never shifting, the other type being evidential burden of proof shifts or oscillates constantly as the scale of evidence preponderates. In resolving the first question, the primary onus of proof in a civil case such as the present one lies on the Applicant who happens to be the now Respondent.
I agree that the evidence adduced by the Respondent were not cogent enough to prove his case to warrant the grant of his application against the Appellant. I cannot over-emphasize the all-important position of the law that he who asserts must prove, and that civil suits are decided on preponderance of evidence.

Going further, on the argument of the Appellant Counsel that the trial Court was bound to take judicial notice of his person as against the description given by the requesting authority, Section 122 of the Evidence Act made provision for what the Court can take judicial notice of as follows:
“122.
1) No fact of which the Court shall take judicial notice under this section needs to be proved,
2) The Court shall take judicial notice of –
(a) all laws or enactments and any subsidiary legislation made under them having the force of law now or previously in force in any part of
Nigeria;
(b) all public Acts or Laws passed or to be passed by the National Assembly or a State House of Assembly, as the case may be, and all subsidiary legislation made under them and all local and personal Acts or Laws directed by the National Assembly or a State House Assembly to be judicially noticed;
(c) the course of proceeding of the National Assembly and of the Houses of Assembly of the States of Nigeria;
(d) the assumption of office of the President, a State Governor or Chairman of a Local

Government Council, and of any seal used by any such public officer:
(e) the seals of all the Courts of Nigeria, the seals of notaries public, and all seals which any person is authorised to use by any Act of the Rational Assembly or other enactment having the force of law in Nigeria;
(f) the existence, title and national flag of every State or sovereign recognised by Nigeria;
(g) the divisions of time, the geographical divisions of the world, the public festivals, fasts and holidays notified in the Federal Gazette or fixed by an Act;
(h) the territories within the Commonwealth;
(j) the commencement, continuance and termination of hostilities between the Federal Republic of Nigeria and any other State or body of persons;
(i) the names of the members and officers of the Court and of their deputies and subordinate officers and assistants, and also of all officers acting in execution of its process, and of all legal practitioners and other persons authorised by law to appear or act before it;
(k) the rule of the road on land or at sea;
(l) all general customs, rules and principles which have been held to have the force of

law in any Court established by or under the Constitution and all customs which have been duly certified to and recorded in any such Court; and
(m) the course of proceeding and all rules of practice in force in any Court established by or under the Constitution.
3) In all cases in Subsection (2) of this Section and also on all matters of public history, literature, science or art, the Court may resort for its aid to appropriate books or documents of reference.
4) If the Court is called upon by any person to take judicial notice of any fact, it may refuse to do so unless and until such person produces any such book or document, as it may consider necessary to enable it to do so. ”
This shows that even though the physical features of the Appellant does not fall under what the Court can take notice of, the identity of the Appellant falls under what the Court should have taken judicial notice of according to Section 122(4) of the Evidence Act which the Court in my opinion failed to do. However, and in totality too, the trial Court failed to consider the opposition of the identity of the Appellant by the Appellant after the failure of the

Respondent and the requesting authority to give satisfactory evidence as it relates to the true identity of the Appellant.
In answering the question raised by the second issue for determination by this Court and in addition to my findings, the Learned trial judge was wrong in granting the extradition application and ordering the surrender of the Appellant for trial in the United States of America.
This issue is resolved in favour of the Appellant.

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 to set aside the decision of the trial Court and order that this case be sent back to the trial Court for re-trial. An order for accelerated hearing of the matter at the trial Court is hereby made.

MOHAMMED MUSTAPHA, J.C.A.: I have had the benefit of reading in draft the lead judgment just delivered by my learned brother; MOHAMMED BABA IDRIS, JCA.

I agree with the reasoning and adopt the conclusion and orders reached therein. The appeal succeeds and I abide by the consequential orders.

STEPHEN JONAH ADAH, J.C.A. (DISSENTING): I was privileged to read in draft, the judgment just delivered in Court by my learned brother, Mohammed Baba Idris, JCA.

The appeal is in respect of the determination of the Federal High Court on the application of the Respondent in this appeal for the extradition of the Appellant to the United States of America to answer to a two-count indictment in case No: S6 16 CR. 575 (PAC) and filed on 7th December, 2017 in the United States District Court, Southern District of New York, United States of America.

The trial Court at the end of the case delivered judgment wherein it concluded as follows:
“l am satisfied that the evidence of the Applicant in this case is in compliance with S. 17 (1) (a) & (b), (3) (a) & (b), and (4) of the Extradition Act and I hereby admit and rely on same. I find that the Applicant has made a case to warrant the issuance of the order sought in the application. This application succeeds on the merit.”
Consequently:
(i) An Order is hereby made for the surrender of the Respondent Princewill Ugonna Anuebunwa by the

Hon. Attorney-General of the Federal to the United States of America to answer for the criminal charges against him in that country after 15 days hereof.
(ii) The Respondent is hereby committed to the custody of the Nigeria Correctional Service until the Order of this Court for his surrender is carried out.
(See page 330 of the record of appeal).

Aggrieved by this decision, the appellant appealed to this C ourt by filing two notices of appeal on 2nd and 10th June, 2020, respectively. The appellant withdrew the notice of appeal filed on 2/6/2020 and argued the notice of appeal filed on 10th June, 2020.

Two issues were distilled by the appellant in his brief of argument. Those issues are the prime issues, so this appeal is determined on these two issues. The issues are listed as follows:
1. Whether Section 84 of the Evidence Act 2011 does not apply to extradition proceedings and the learned trial judge was right in dismissing the Notice of Preliminary Objections filed by the Appellant to expunged the inadmissible paragraphs of the affidavit and Exhibits A – D in support of the extradition application? (Ground iv).
2. Whether the learned trial judge was right in

granting the extradition application and ordering the surrender of the appellant for trial in the United States of America? (Grounds ii, iii, v, vi and vii).
I shall take these two issues together.

The appellant on his showing did not distil any issue from grounds (i) and (viii) of the grounds of appeal. The position of the law is very clear. It is that any ground of appeal where no issue is raised from in the appeal is deemed abandoned and must be struck out. See Niger Construction Ltd v. Okugbeni (1987) 4 NWLR (Pt. 67) 787, Ekunola v. CBN & Anor. (2013) LPELR – 20391 (SC). The reason is that grounds of appeal represent the complaints of an appellant against the decision of a Court and the appellant, who raised the grounds of appeal on which he predicates has the right to abandon or withdraw any ground. See Araka v. Ejeagwu (2000) 15 NWLR (Pt. 692) 684 SC. In the instant case, no issue was formulated from grounds (i) and (viii). These two grounds are deemed abandoned and they are hereby struck out.

A look at the two grounds will reveal what the appellant by that act of abandonment brought to bear in this appeal. Ground one of the grounds of appeal reads:
Ground 1:
The learned trial judge erred in law when he dismissed

the preliminary objections filed by the Respondent (appellant herein) to the Extradition Application on grounds that the objections are not applicable in Extradition proceedings.
Particulars of Error:
a. The provisions of Section 84 of the Evidence Act, 2011 cover all proceedings including Extradition proceedings without any exemptions.
b. The provisions of Section 84 apply to proceedings decided by affidavit evidence as well as oral hearing.
c. The decision of the trial judge has occasioned a miscarriage of justice.

The particulars are hinged on Section 84 of the Evidence Act, 2011.
Furthermore, ground (viii) of the grounds of appeal reads:
Ground viii:
The decision in altogether unreasonable and cannot be supported by the Evidence before the Court.

This ground also which has no particulars complained of unreasonableness of the decision of the trial Court. Since these two grounds were abandoned in this appeal, the substratum of this appeal is almost gone.

The appellant in his brief of argument distilled two issues for determination. Issue one is anchored on ground iv of the grounds of appeal. A closer look at

issue one vis-a-vis ground iv shows clearly there is no alignment between them. Issue one reads:
1. Whether Section 84 of the Evidence Act 2011, does not apply to extradition proceedings and the learned trial judge was right in dismissing the Notice of Preliminary Objections filed by the appellant to expunge the inadmissible paragraphs of the affidavit and Exhibits A – D in support of the extradition application? (Ground iv).
Ground iv reads:
Ground IV:
The learned trial judge erred in law when he held that “In my understanding of the process of preliminary objection, it is used to challenge either the jurisdiction of the Court going by Order 29 of the FHCCP 2009, OR to challenge the competence of a suit going by Order 16 of the FHCCPR 2009 at the threshold of the Court…in this case, the preliminary objection used to challenge the evidence tendered by the applicant in the substantive suit, I will not mince words in forthrightly say this is wrong.”
Particulars of errors in law:
a. The procedure applied by the Respondent is correct contrary to the position of the trial judge as Notice of Preliminary Objection is used to

challenge any abnormality in a proceeding and not only jurisdiction or competence of a suit.
b. A challenge of admissibility of wrongful evidence in a trial on affidavit evidence is done through a Notice of Preliminary Objection.
c. Assuming but not conceding that the trial judge was right, an objection to admissibility of wrongful evidence is a challenge to the competence of the suit which the judge failed to appreciate.
d. The dismissal of the Notice of Objection was prejudicial to the appellant.

There is absolutely no relation or correlation between issue one and ground iv of the grounds of appeal. These errors go beyond technicality to fundamental errors in this appeal. The process of appeal is time consuming and every appellant coming to Court on appeal needs to be diligent in putting across his complaints before this Court. The main issue from the totality of the records before us in this appeal is on whether Section 84 of the Evidence Act, 2011, an Act of the National Assembly of Nigeria, does not apply to extradition proceedings. Section 84 of the Evidence Act, deals with admissibility of statement in documents produced by computers.

The application of Section 84 of the Evidence Act, to proceeding before our Courts has been settled by the Supreme Court in the cases of Onuoha v. Ubah & Ors. (2019) LPELR 48129 (SC) and Dickson v. Sylva & Ors. (2016) LPELR 41257. The sum or the essence of Section 84 of the Evidence Act is all about ascertaining the authenticity of the device from which the exhibit was produced. The contest of whether Section 84 of the Evidence Act must be applicable to the instant case must be resolved after appreciating the issue that is dominant in the instant case.
The instant case on appeal is on Extradition of the appellant under the Extradition Act, 2017. The Nigeria Extradition Act, 2017 has by Section 17 provided as follows:
17. (1) In any proceedings under this Act, any of the following documents, if duly authenticated, shall be received in evidence without further proof, namely-
(a) any warrant issued in a country other than Nigeria;
(b) any deposition or statement on oath or affirmation taken in any such country, or a copy of any such deposition or statement;
(c) any certificate of conviction issued in any such country.

(2) For the purposes 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 witness 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 of 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 may be, 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

purposes of this Act, judicial notice shall be taken of the official seals of ministers of state of countries other than Nigeria.
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. It only becomes applicable where the judex is not comfortable with the authenticity of the documents generated from the foreign jurisdictions.
In the instant case, the learned trial judge was able to capture the essence of the proceeding that is before us on appeal. The learned trial judge in his judgment held

at pages 328 to 330 of the Record of Appeal as follows:
“On the issue of computer print-out alleged by the Respondent, I find that the relevant materials required to be submitted to the Court by the Applicant in an application for the extradition of the Respondent in compliance with S. 17 (1) (a) & (b), (3) (a) & (b), and (4) of the Extradition Act are admissible in evidence. The issue on inadmissible evidence is premature at this state. It may go to the root of the trial of the Respondent but certainly not in these proceedings. Extradition proceedings is not to be equated with criminal trial; see FRN v. Udeozor (2005) 2 FHCLR 575. This objection in my opinion is an ingenuous invention of the Respondent to cause mere confusion which attempt has been rebutted by the evidence of the Applicant. I agree with the Applicant that the requirements for extradition order are that:
a. There is a request for the surrender of the fugitive;
b. The fugitive is accused of extradition offences in a country other than Nigeria;
c. There is a warrant of arrest issues outside Nigeria authorizing the arrest of the fugitive;
d. The warrant of arrest

was issued in a country to which the Extradition Act apply;
e. The warrant of arrest is duly authenticated and same relate to the fugitive;
f. The offences which the fugitive is accused of are extraditable offences;
g. The evidence produced will according to the 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 in particular S. 3(1) — (7) of the Act.
See FRN v. Dike (2004) 1 FHCLR 80.
I am satisfied that the evidence of the Applicant in this case is in compliance with S. 17 (1) (a) & (b), (3) (a) & (b) and (4) of the Extradition Act and I hereby admit and rely on same. I find that the Applicant has made a case to warrant the issuance of the order sought in the application. This application succeeds on the merit.”
This finding of the lower Court from the record before us is unassailable. It is very correct and obvious that the application for extradition is not in itself the trial of the appellant. The essence of the extradition is to allow the appellant

the opportunity of being tried in the foreign country for the offences for which he was charged there.
The lower Court also made a correct finding in respect of the identity of the appellant. The lower Court did a very good assessment of the evidence before it and the lower Court was right in its decision to grant the application for extradition.

I therefore find it extremely difficult to accede to the opinion of the majority in this case. The appeal to me has no merit. I do dismiss the appeal and I affirm the decision of the lower Court

Appearances:

Akulaja, SAN with him, D. A. Agada Esq., T. O. Oguntaye Esq. and O. C. Dada Esq. For Appellant(s)

U. Akutah Esq with him, J. D. Eko Esq., A. Ekang Esq., G. I. Lawal Esq. and A. S. Bello Esq. For Respondent(s)