TILLERY v. A.G.F
(2021)LCN/15636(CA)
In The Court of Appeal
(LAGOS JUDICIAL DIVISION)
On Monday, March 01, 2021
CA/L/325/2013
Before Our Lordships:
Jummai Hannatu Sankey Justice of the Court of Appeal
Peter Olabisi Ige Justice of the Court of Appeal
Abubakar Sadiq Umar Justice of the Court of Appeal
Between
JAMES KENNETH TILLERY APPELANT(S)
And
ATTORNEY GENERAL OF THE FEDERATION RESPONDENT(S)
RATIO
CIRCUMSTANCES WHERE A REFERENCE CAN BE MADE TO THE COURT OF APPEAL BY A HIGH COURT
I am fortified in this by the decision of the Supreme Court in the case of FRNV Ifegwu (2003) 15 NWLR (Pt. 842) 113, per Uwaifo, JSC. Therein, his lordship held:
“Let me first state in what circumstances a reference may be made to the Court of Appeal by a High Court. The relevant provision of the 1999 Constitution is Section 295(2) in the present case where reference was made to the Federal High Court. It reads:
‘Where any question as to the interpretation or application of this Constitution arises in any proceedings in the Federal High Court, National Industrial Court or a High Court, and the Court is of the opinion that the question involves a substantial question of law, the Court may, and shall if any party to the proceedings so requests, refer the question to the Court of Appeal; and where any question is referred in pursuance of this subsection, the Court shall give its decision upon the question and the Court in which the question arose shall dispose of the case in accordance with that decision.” PER SANKEY, J.C.A.
THE CARDINAL RULE OF INTERPRETATION OF STATUTES
This provision and similar ones have received judicial consideration in many cases. It is clear from these cases that there are conditions which must exist before a reference can be made under this provision.
First the question must be as to the interpretation or application of the constitution. It is the foundation for even contemplating making a reference. See Gamioba V Esezi (1961) 2 SCNLR 283; Atake V Ifejuku (1994) 9 NWLR (Pt. 368) 379. Second, such a question must arise in the proceedings in connection with an issue before the Court making reference. See Olawoyin V Commissioner of Police (No. 2) (1961) 2 SCNLR 278, (1961) All NLR 20; Bamaiyi V AG Federation 12 NWLR (Pt. 727) 468, (2001) 7 SC (Pt. II) 62. Third, the matter for reference must involve a substantial question of law…”
See also Labour Party V INEC (2008) 13 NWLR (Pt. 1103) 73; Togun V Oputa (No. 1) (2001) 16 NWLR (Pt. 740) 577; Bamaiyi V AG Federation (2001) 12 NWLR (Pt. 727) 468.
Where these four conditions are met, then the Court may, suo motu refer the question to the Court of Appeal for its decision. However, if any party to the proceedings so requests, the Court shall refer the question to the Court of Appeal for its decision.
Applying the golden rule of interpretation which is a literal construction to this provision, it provides that where the Court is of the opinion that the question that has arisen for interpretation in the proceedings before it involves a substantial question of law, and a party has applied for it to be referred to the Court of Appeal for a decision, then it is mandated to so make the referral. The Court has no discretion to exercise in the matter. This is because it also settled law that the word “shall” connotes compulsion.
In the case of Agip (Nig) Ltd V Agip Petrol int’l (2010) 5 NWLR (Pt. 1087) 348, 419, the Supreme Court per Adekeye, JSC held:
“The word “shall” in the ordinary meaning is a word of command which is normally given a compulsory meaning because it is intended to denote obligation. When the word “shall” is used in a statute, it is not permissive it is mandatory, it imports that a thing must be done.”
See also Abdullahi V Military Admn. Kaduna State (2009) 15 NWLR (Pt. 1165) 417 (SC); Abiodun V AG Federation (2007) FWLR (Pt. 398) 7135, 7174; Ogidi V State (2005) 5 NWLR (Pt. 918) 286. PER SANKEY, J.C.A.
JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): This Appeal is against the Ruling of the Federal High Court in Suit FHC/L/CS/417C/10 delivered on November 18, 2011 by Nyako, J.
The facts leading to this Appeal are briefly as recounted succinctly by the parties as follows: On May 14, 2010, the Respondent signified its intention to commence extradition proceedings against the Appellant following a representation by the United States of America for the surrender of the Appellant to face criminal charges in the United States of America. This was based on an indictment of the Appellant in the United States District Court, Southern District of Texas in Charge No. H-08-CR-22-01, filed on January 17, 2008, for conspiracy to violate Foreign Corrupt Practices Act (FCPA) contrary to Title 18 U.S Code, Section 371, FCPA Violations, contrary to Title 15, U.S. Code, Section 78 dd-2(a) and 78 dd-2(b) and Conspiracy to commit Money Laundering Title 18, U.S. Code, Section 1956(h).
The Respondent filed his application on February, 10, 2011, while the Appellant filed an affidavit showing cause why the Appellant should not be extradited and same was dated December 8, 2012. On the Order of the Court, both parties filed their respective written addresses. Before the application was heard, the Appellant filed a motion on notice urging the lower Court to refer to this Court a question as to whether there exists any legally enforceable treaty between the Federal Republic of Nigeria and the United States of America to warrant such a request and surrender.
In urging the lower Court to refuse the application brought by the Respondent, the Appellant relied on a decision of the same Court in Unreported Suit No: FHC/L/33C/06 between Attorney General of the Federation v. Abiodun Michael Bakare, Judgment delivered on June 29, 2007 by D.D Abutu, J. wherein he found that there is no legally enforceable Extradition Treaty between Nigeria and the United States of America.
Replying, the Respondent contended conversely that there is a legally binding and enforceable Extradition Treaty between Nigeria and the United States of America. He also predicated his argument on another derision of the same Federal High Court in Unreported Suit No. FHC/L/228/08 between the Attorney General of the Federation V Oluremi Adebayo, Judgment delivered on April 8, 2009 by I. N. Auta, J.
Based on these divergent submissions and reliance on two conflicting decisions of the same Court, the Appellant filed a motion on notice on June 22, 2011 praying the lower Court to refer to the Court of Appeal for its decision the question of whether there exists any legally binding and enforceable Extradition Treaty between the United States of America and Nigeria as contained in the Extradition (United State of America) 1967 based on the application of the provisions of Sections 1 (1) (3), 12(1) and 315 of the 1999 Constitution (as amended) to the provisions of Section 1 of the Extradition Act, Cap E25, LFN, 2004.
In its Ruling delivered on November 18, 2011, the lower Court declined to pronounce on the merit or otherwise of the application on the ground that the judgment of Abutu, J. in Attorney General of the Federation V Bakare supra) is the subject of a pending Appeal before the Court of Appeal. It therefore placed the extradition proceedings before it on hold pending the outcome of the decision of this Court on the issue in that Appeal (page 736-737 of the Record of Appeal). Dissatisfied with this state of affairs, and having regularized his processes, the Appellant filed a Notice of Appeal dated February 8, 2013 wherein he complained on three grounds (pages 748-758 of the Record). He sought the following reliefs therein:
“1) An order allowing this appeal.
2) An order setting aside the decision of the Court below made on November 18th 2011.
3) An order directing the lower Court to refer to this Court for its decision thereon, the question whether on a proper application of the provisions of Sections 1 (1), (3), 12(1) and 315 of the Constitution of the Federal Republic of Nigeria, 1999 to the provision of Section 1 of the Extradition Act Cap E25 Laws of the Federation 2004, there is in existence in Nigeria a legally enforceable Extradition Treaty between the Federal Republic of Nigeria and the United States of America as contained in the Extradition (United States of America Order) 1967.”
At the hearing of the Appeal on 08-12-21, Mofesomo Tayo-Adetiba Esq., adopted the submissions in the Appellant’s Brief of argument filed on 20-06-13 but deemed properly filed on 10-02-15 and settled by John Aga, Esq., and the submissions in the Appellant’s Reply Brief of argument filed on 05-10-18 and settled by Mofesomo Tayo-Oyetiba, Esq., in urging the Court to allow the Appeal.
The Respondent, even though duly served a hearing notice, was not in Court neither was he represented by Counsel. However, since the Respondent’s Brief of argument had already been filed on 23-08-17 and settled by Michael Osong Esq., Senior State Counsel, Office of the Federal Attorney-General of the Federation it was deemed duly argued pursuant to Order 19 Rule 9(4) of the Court of Appeal Rules, 2016.
Both the Appellant and the Respondent each distilled one Ione issue for the determination of the Appeal in their respective Briefs of argument. The Appellant’s issue questioned-
“Whether the learned trial Judge was right in law in refusing the Appellant’s Application dated 21st June 2011 made pursuant to Section 295(2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) for reference to the Court of Appeal, a constitutional question for its decision thereon – Grounds 1, 2 & 3.”
The Respondent’s issue donated for determination also states as follows:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
“Whether on a proper interpretation of Section 295(2) of the 1999 Constitution of the Federal Republic of Nigeria, as amended, reference being had to the facts of this case, it would be safe to assume that the Court below is duty bound to refer the said constitutional questions to this Court at the behest of appellant (Grounds 1 & 2).”
Since the issues are virtually identical in content, the issue formulated by the Appellant is adopted in the determination of the Appeal.
ARGUMENTS
“Whether the learned trial Judge was right in law in refusing the Appellant’s Application dated 21st June 2011 made pursuant to Section 295(2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) for reference to the Court of Appeal, a constitutional question for its decision thereon.”
Learned Counsel for the Appellant submits that Section 295(2) of the Constitution of the Federal Republic of Nigeria, 1999 {as amended) empowers the lower Court to refer to the Court of Appeal for its decision thereon any question or questions as to the interpretation or application of the Constitution arising in the proceedings before it. It was therefore pursuant to this provision that the Appellant filed his application of June 21, 2011 praying the lower Court to refer the following question to the appellate Court for its decision:
“Whether on a proper application of the provisions of Sections 1 (2), (3), 12(1) and 315 of the Constitution of the Federal Republic of Nigeria, 1999 to the provision of Section 1 of the Extradition Act Cap E25, Laws of the Federation 2004, there is in existence in Nigeria a legally enforceable Extradition Treaty between the Federal Republic of Nigeria and the United States of America as contained in the Extradition (United States of America) Order 1967.”
However, the lower Court refused the application and dismissed same.
Counsel contends that the only reason the trial Court refused to refer the question to this Court is because there is said to be an appeal on the same point pending before this Court in another unrelated matter. He however submits that this reason is not based on any legal principle. Counsel relies on the following decisions for the guiding principles to guide a Court in referring a constitutional question to the Court of Appeal for decision: Labour Party V INEC (2008) 13 NWLR (Pt. 1103) 73; Togun V Oputa (No. 1) (2001) 15 NWLR (Pt. 740) 577; Bamaiyi V AG Federation (2001) 12 NWLR (Pt. 727) 468.
Counsel also refers to the decision of the Supreme Court in FRN V Udensi Ifegwu (2003) 15 NWLR (Pt. 842) 113 per Uwaifo, JSC and submits that all the conditions set out therein existed in this case. He argues that the vary adjournment of the matter to await the outcome of the Appeal in Bakare’s case testifies to the fact that the case is one that should have been referred to this Court, but for that Appeal. He therefore submits that since the reason for refusing the application is not predicated on any known principle of law, the Order refusing the referral ought to be set aside.
Counsel further submits that Section 295(2) of the Constitution (supra) does not admit of the exercise of any discretion on the part of the trial judge as to whether or not a substantial question of law should be referred to the Court of Appeal. Reference is again made to FRN V Ifegwu (supra) 193.
Counsel also submits that the Appellant herein was neither a party to Suit No. FHC/L/333C/06 at the Federal High Court nor is he a party to the appeal against the decision of the said Court delivered in that suit in which the legal status of the treaty is the subject matter of the appeal, on the basis of which the lower Court refused his request for referral. Therefore the lower Court refusing his application to refer the question to this Court and deciding to await the outcome of the decision of this Court on the legal status of the Extradition Treaty in an Appeal to which the Appellant is not a party, if allowed, would deprive the Appellant of the opportunity to be heard on the legal status of the Treaty before a decision is given. This, he contends, will be in violation of his right to fair hearing under Section 36(1) of the Constitution (supra) -Re G.M. Boyo (1970) All NLR 114, 118-119. Counsel therefore urged the Court to prevent a breach of the Constitution by setting aside the decision of the lower Court on the ground that a failure to do so would deprive the Appellant an opportunity to be heard before a decision is given on the legal status of the Extradition (United States) Order 1967. Finally, Counsel urged the Court to set aside the decision of the lower Court and allow the Appeal.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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In response, learned Counsel for the Respondent submits that any question referred to the appellate Court for decision under Section 295(2) of the Constitution (supra) must raise substantial issues of law and this is an issue which must be determined by the lower Court. Thus, it is the lower Court that must decide the substantially of the question. He contends that it is not necessary for an appellate Court to answer every/any question referred to it by the lower Court pursuant to Section 295(2) of the Constitution (supra); especially where that would amount to an academic exercise.
Counsel equally relies on the case of FRN V Ifegwu (supra) for the conditions to be complied with before a reference may validly made. The first condition is that there must not be in existence any decision on that point by the Court to which a reference is made. In this regard, Counsel refers to the decision of this Court per Dongban-Mensem, JCA in Udeozor V FRN (2002) QCCR Vol. 10, where a pronouncement was made in respect of the legal status of the Extradition Treaty between Nigeria and the United States. He therefore submits that this is an invitation ta the Court to sit on appeal over its own decision, since this Court has already done justice to the issue in contention. Therefore, it would be academic for the Court to be persuaded to engage in a fruitless venture which would afford no practical benefits to the parties or the Court. This decision subsists in perpetuity unless set aside by a Court of competent jurisdiction – Purification Technique V Jubril (2012) 18 NWLR (Pt. ?) 109 (citation incomplete).
On the issue of whether the lower Court has a discretion on whether or not to indefinitely adjourn a matter before it pending the outcome of an appeal or to refer a constitutional matter to an appellate Court. Counsel refers to Section 305(1) (a) of the Criminal Justice Act, 2015, which is similar to Section 243(1) of the repealed Criminal Procedure Act, Cap C41, LFN 2004. It provides that the Court has a discretion to adjourn the trial until such a question shall have been considered and decided. He argues that the discretionary decision of the lower Court to keep the matter in abeyance pending the outcome of the decision of the Court of Appeal is anchored on the principle of doing substantial justice to the parties.
Therefore it is not open for this Court to interfere with the discretion of the lower Court to adjourn the case, especially where it is done In the interest of justice.
On the issue of the breach of the Appellant’s right to fair nearing under Section 36(1) of the Constitution (supra). Counsel submits that the Appellant cannot complain because the question sought to be referred to this Court was predicated on his motion on notice dated June 21, 2011 which was carefully considered and dismissed on the same date. Therefore, the rights of the Appellant had been freely and carefully determined and he cannot complain of lack of fair hearing.
Still on the issue of fair hearing, Counsel submits that if the Appellant felt the need to be joined in the suit in Bakare’s case, the law recognizes the right of appeal of an interested party – Akuneziri V Okenwa (2001) FWLR (Pt. 35) 604, 623. Therefore, the refusal of the Appellant to apply to be joined as an interested party to an existing appeal would not amount to a breach of the right to fair hearing.
Counsel further submits that pursuant to Order 4 Rules 3, 4 and 5 of the Court of Appeal Rules and Section 15 of the Court of Appeal Act, Cap C36 LFN, 2004, this Court has the power to mandate the lower Court to determine the substantive matter in the light of the decision in Udeozor V FRN (2007) Vol. 10 QCCRP 135 (CA). He contends the essence of this is that substantial justice be done, notwithstanding that a party has not filed a Notice of Appeal or a Respondent’s Notice of a Cross-Appeal. Thus, since the Court of Appeal has already pronounced on the question sought to be referred to it in the case of Udeozor V FRN (supra), it would be inviting the Court to re-litigate an issue it once decided. Therefore, when the lower Court was faced with two conflicting decisions of the same Court of coordinate jurisdiction, to with the Federal High Court, and the attention of the Court was drawn to the case of Udeozor V FRN (supra), logic, law and the principle of stare decisis, enjoined the lower Court to have determined the case one way or another to afford the aggrieved parties a chance to appeal its decision at once. This is especially as the case was a criminal matter requiring of an expeditious hearing.
Based on the above, Counsel submits that the decision of the lower Court to await the outcome of the decision of this Court in the case of FHC/L/333C/06 Attorney General of the Federation V Abiodun Michael Bakare is not borne out of a judicious exercise of discretion, particularly as there is no appeal number to ascertain if the Appeal is still pending in this Court or it has been decided. Since this information is not contained in the Ruling of the lower Court, to rely on speculation would be unjust in a criminal matter which requires prompt hearing. Counsel therefore urged the Court to dismiss the Appeal for lacking in merit. He asked the Court to consider the option of mandating the lower Court to give its decision instead of awaiting the outcome of an Appeal in this Court, which is not identified, in respect of Suit No. FHC/L/333C/06 Attorney General of the Federation V Abiodun Michael Bakare.
In his reply on points of law, learned Counsel for the Appellant refers to the Respondent’s contention that this Court cannot decide on the question of law which the Appellant had applied to the lower Court to refer to this Court due to the fact that it has decided on the same issue in Udeozor V FRN (supra). He contends that the lower Court in its decision being appealed against, did not refuse the Appellant’s application on the ground that the Court of Appeal had already resolved the question raised by the Appellant in the case of Udeozor V FRN (supra). Rather, the lower Court refused the application on the ground that there were two earlier conflicting decisions of the Federal High Court, one of which was on appeal, by reason of which it would adjourn proceedings to await the decision of the Court of Appeal. Counsel submits that the Respondent had therefore departed from the grounds upon which the lower Court reached its decision by putting forward other grounds that do not arise from the grounds or appeal. Yet, it did not filed a Notice of Intention to contend or a Notice of Cross-Appeal as required by Order 9 Rule 2 of the Court of Appeal Rules, 2016. Therefore, the Respondent is bound by the Appellant’s grounds of appeal and cannot raise any other issue other than those in the Notice of Appeal. As a Respondent, his duty is to support the decision of the lower Court and he cannot deviate therefrom – Comptoir Comm. & Ind. S.R.R. Ltd V Ogun State Water Corp (2002) 2 NWLR (Pt. 773) 629. Counsel therefore urged the Court to reject and discountenance the Respondent’s arguments as having been improperly raised.
In spite of these submissions, Counsel submits on the merit thereof. He disputes the interpretation given by the Respondent to the decision of the Court of Appeal in Udeozor V FRN (supra). He argues instead that by the decision in African Newspapers V FRN (1985) 2 NWLR (Pt. 6) 137 per Obaseki, JSC, the Court of Appeal bound to make references to the Supreme Court even where the Court of Appeal has previously disposed of the question in another matter. Counsel therefore submits that the lower Court had a mandatory duty to have referred the constitutional question raised by the Appellant to this Court for resolution.
On the application of Section 305(1) of the Administration of Criminal Justice Act, 2015 concerning the exercise of the discretion of the lower Court, Counsel submits that it is inapplicable to this case since the law was enacted and came into force on May 13, 2015, which is after the Ruling of the lower Court delivered on November 18, 2011. It was therefore non-existent at the time of the Ruling of the lower Court. In addition, the Respondent is not entitled to raise this issue since he did not file a Respondent’s Notice or Notice of Cross-Appeal.
Counsel submits that the law in force at the time was Section 243A of the Criminal Procedure Act. However, the provision is still inapplicable to the facts of this case because it does not provide for the adjournment of proceedings pending the determination of a separate unconnected Appeal. In addition, the Appeal in Bakare V FRN was not a reference from a lower Court to the Court of Appeal, but a substantive Appeal which was not covered by Section 243(a) of the CPA.
In respect of the breach of the Respondent’s right to fair hearing, Counsel re-hasted his arguments in the Appellant’s Brief and submits that his complaint is not that the lower Court did not hear his application/motion. Rather his complaint that the refusal of the lower Court to make the reference tied his fate to the case of Bakare V FRN, an Appeal to which he is not a party. Therefore, it has deprived him of the exercise of his constitutional right to approach the Court of Appeal for the determination of an important constitutional question of law.
On the call made by the Respondent for this Court to make an order on the lower Court to determine the substantive matter in the light of the decision in Udeozor V FRN (supra) based on Order 4 Rules 3, 4 and 5 of the Rules of this Court, Counsel disagrees for the two reasons: (1) the Court of Appeal is an intermediate Court and so its decision in Udeozor V FRN (supra) is still subject to a potential review by a final appeal to the Supreme Court, (2) the decision is not applicable to the facts of this case as the Court of Appeal did not consider the provisions of Sections 1(1), (3), 12(1) and 315 of the 1999 Constitution (supra), which provisions are the centre-point of the constitutional question raised by the Appellant at the lower Court. Relying on Okafor V Nnaife (1987) 4 NWLR (Pt. 64) 129 and Udo V State (2016) LPELR-40721(SC), Counsel submits that a decision is only an authority for what it decides based on its peculiar facts and circumstances. Counsel therefore urged the Court to reject the Respondent’s invitation to make such an order.
RESOLUTION OF THE SOLE ISSUE
For a proper determination of the issue arising for determination in this Appeal, it is pertinent to set out a brief background to set the stage of how the parties arrived here. By a process dated September 14, 2010 and filed on November 9, 2010, the Hon. Attorney-General of the Federation and Minister of Justice, Mohammed Bello Adoke, SAN, applied as follows (at pages 1-3 of the Record of Appeal):
“IN THE MATTER OF THE EXTRADITION ACT (CAP. E25) LAWS OF THE FEDERATION OF NIGERIA, 2004 SECOND SCHEDULE
FORM 1
TO: THE CHIEF JUDGE, FEDERAL HIGH COURT, LAGOS.
WHEREAS, in pursuance of the Extradition Act, a request has been made to Nigeria by a Diplomatic Representative of the Embassy of the United States of America, Abuja, for the surrender of JAMES KENNETH TILLERY who is being indicted with Four-Count charges of Conspiracy to Violate the Foreign Corrupt Practices Act (“FCPA”), Violation of the FCPA and Conspiracy to Commit Money Laundering of superseding criminal indictment Number H-08-CR-22-01, within the jurisdiction of the United States Government Grant Jury, sitting in the Southern District of Texas, on 17th January, 2008.
The Four-Count charge made against JAMES KENNETH TILLERY and one other including conspiracy to violate the FCPA, violating the FCPA by authorising the specific corrupt payments to officials in Nigeria and Ecuador, and conspiring to launder the bribe payments through purported consulting companies controlled by his accomplice (NOVAK).
NOW I, MOHAMMED BELLO ADOKE, SAN, Honourable Attorney-General of the Federation and Minister of Justice, by this Order, under my hand, signify to you that this request has been made and require you to deal with the case in accordance with the provisions of the Extradition Act, Cap. E25, LFN 2004.
2. In support of this Order, I attach an affidavit together with the Exhibits thereto, deposed to by DAVID OLUSOJI ATUNRASE, and Executive Officer, Department of Public Prosecutions, Federal Ministry of Justice, Abuja, containing the following documents…”
The Applicant filed a Written Address in support of this application for extradition (pages 150-159 of the Record). In response, the Appellant herein (as Defendant), filed an “Affidavit showing cause why James Kenneth Tillery should not be surrendered in pursuance of the Extradition Act” on December 8, 2010 spanning pages 170-184 of the Record, a Further affidavit dated and filed on January, 2011 (pages 270-274 of the Record) and the Defendant’s Written Address (at pages 358-396 of the Record). In reply, the Applicant filed a Reply Affidavit on Point of Law (pages 425-526 of the Record) and a Further Reply Affidavit on Points of Law (pages 427-428 of the Record).
In the submissions of the respective parties in their Written Addresses, conflicting decisions of the Federal High Court on the status of the Extradition Act were relied upon and brought to the attention of the lower Court, to wit:
1. The Ruling of the Federal High Court in Suit No. FHC/L/303C/06: “In the Matter of the Extradition Act (Cap 125) Laws of the Federation of Nigeria 1990 V Abiodun Michael Bakare”. Judgment delivered on June 29, 2007 by Justice D. D. Abutu (pages 633-649 of the Record, where it was held that there was no legally enforceable Extradition Treaty between the Federal Republic of Nigeria and the United State of America; and
2. The Ruling of the same Federal High Court in Suit No. FHC/L/CS/228/08: “In the Matter of Extradition Acts Laws of the Federation of Nigeria V Oluluremi Adebayo, Judgment delivered by justice I.N. Auta on April 8, 2009 (at pages 697-710 of the Record) where it was held that there is a legally enforceable extradition law, to wit: the Extradition (United States of America) Order, 1967.
Consequently, the Appellant filed a Motion on notice pursuant to Section 295(2) of the Constitution (supra), dated June 21, 2011 (pages 673-674 of the Record) which prayed for:
“1. AN ORDER referring to the Court of Appeal for its decision thereon, the question set out in the subjoined schedule to this Application.”
The schedule attached stated thus:
“SCHEDULE TO THE MOTION
QUESTION FOR REFERENCE TO THE COURT OF APPEAL PURSUANT TO SECTION 295(2) OF THE 1999 CONSTITUTION
Whether on a proper application of the provisions of Sections 1 (1) (3) 12(1) and 315 of the Constitution of the Federal Republic of Nigeria, 1999 to the provision of Section 1 of the Extradition Act Cap E25 Laws of the Federation 2004, there is in existence in Nigeria a legally enforceable Extradition Treaty between the Federal Republic of Nigeria and the United States of America as contained in the Extradition (United States of America) Order 1967.”
The application was supported by an affidavit to which the two Judgments of the Court were annexed as Exhibits A and B respectively. The Respondent herein filed a counter-affidavit. Parties also filed and adopted their written addresses on the application. Thereafter, the lower Court, per Nyako, J., delivered her Ruling on the application on November 18, 2011 wherein she held inter alia as follows (at pages 736-737 of the Record):
“I have read the two cases in issue, while the one per Abutu J categorically says that there is no enforceable extradition treaty between Nigeria and the USA. The case per Auta J relied in toto with the decision of the Court of Appeal in Udezor V FRN per Monica Dongban-Mensem JCA which states – “The extradition treaty between Nigeria and USA is embodied in the Legal Notice No. 33 of 1967 published in the Official Gazette No. 23 Volume 54 of 13/4/67 known as the Extradition (USA) such treaties enumerate what offences the two nations consider extradition…”
It is this very Notice in the official Gazette that the decision of Abutu J says is not enforceable. However, the decision of Abutu J in Abiodun Michael Bakare V FRN is currently an appeal before the Court of Appeal.
Consequent upon this, I find and spine (sic) that it is not necessary to refer this case to the Court of Appeal but to await the decision in Bakare Supra. I so Order.” (Emphasis supplied).
Thus, the proceedings were effectively adjourned sine die on November 18, 2011, pending the outcome of the Appeal in Bakare V FRN. At the next adjournment for the hearing of the pending extradition proceedings on May 10, 2012, the lower Court further adjourned the matter on the ground that the decision in the Bakare case on appeal was still being awaited. In the meantime, the Appellant had filed this Appeal against the decision of Nyako, J., on February, 17, 2012, which he later withdrew and regularised with the leave of this Court by the current Notice of Appeal dated and filed on February 8, 2013.
From the totality of the submissions of learned Counsel for the Appellant, as well as those of learned Counsel for the Respondent, both parties are dissatisfied with the Ruling of the lower Court. For, whereas the Appellant has argued that the application for referral to the Court of Appeal brought pursuant to Section 295(2) of the Constitution should have been granted in view of the conflicting decisions emanating from the same Court on the status of the Extradition Treaty; the Respondent argues that the lower Court, having recognized that the Court of Appeal had earlier pronounced on the same of the Extradition Treaty in the case of Udeazor V FRN (supra), which decision was relied upon by Auta, J., should simply have applied same and refused the application for referral.
Section 295(2) of the Constitution (supra) provides:
“Where any question as to the interpretation or application of this Constitution arises in any proceedings in the Federal High Court, National Industrial Court or a High Court, and the Court is of the opinion that the question involves a substantial question of law, the Court may, and shall if any party to the proceedings so requests, refer the question to the Court of Appeal; and where any question is referred in pursuance of this subsection, the Court shall give its decision upon the question and the Court in which the question arose shall dispose of the case in accordance with that decision.” (Emphasis supplied).
From this provision, the following elements must be present before a High Court, such as the Federal High Court in this instance, shall refer the question to the Court of Appeal for a decision.
a) The question that arises before the Court must be in respect of the interpretation or application of any of the provisions of the Constitution (supra);
b) The question must arise from an issue in the proceedings before the Court;
c) The question must have arisen in proceedings before the Federal High Court, National Industrial Court or State High Court;
d) The Court is of the opinion that it involves a substantial question of law.
I am fortified in this by the decision of the Supreme Court in the case of FRNV Ifegwu (2003) 15 NWLR (Pt. 842) 113, per Uwaifo, JSC. Therein, his lordship held:
“Let me first state in what circumstances a reference may be made to the Court of Appeal by a High Court. The relevant provision of the 1999 Constitution is Section 295(2) in the present case where reference was made to the Federal High Court. It reads:
‘Where any question as to the interpretation or application of this Constitution arises in any proceedings in the Federal High Court, National Industrial Court or a High Court, and the Court is of the opinion that the question involves a substantial question of law, the Court may, and shall if any party to the proceedings so requests, refer the question to the Court of Appeal; and where any question is referred in pursuance of this subsection, the Court shall give its decision upon the question and the Court in which the question arose shall dispose of the case in accordance with that decision.”
This provision and similar ones have received judicial consideration in many cases. It is clear from these cases that there are conditions which must exist before a reference can be made under this provision.
First the question must be as to the interpretation or application of the constitution. It is the foundation for even contemplating making a reference. See Gamioba V Esezi (1961) 2 SCNLR 283; Atake V Ifejuku (1994) 9 NWLR (Pt. 368) 379. Second, such a question must arise in the proceedings in connection with an issue before the Court making reference. See Olawoyin V Commissioner of Police (No. 2) (1961) 2 SCNLR 278, (1961) All NLR 20; Bamaiyi V AG Federation 12 NWLR (Pt. 727) 468, (2001) 7 SC (Pt. II) 62. Third, the matter for reference must involve a substantial question of law…”
See also Labour Party V INEC (2008) 13 NWLR (Pt. 1103) 73; Togun V Oputa (No. 1) (2001) 16 NWLR (Pt. 740) 577; Bamaiyi V AG Federation (2001) 12 NWLR (Pt. 727) 468.
Where these four conditions are met, then the Court may, suo motu refer the question to the Court of Appeal for its decision. However, if any party to the proceedings so requests, the Court shall refer the question to the Court of Appeal for its decision.
Applying the golden rule of interpretation which is a literal construction to this provision, it provides that where the Court is of the opinion that the question that has arisen for interpretation in the proceedings before it involves a substantial question of law, and a party has applied for it to be referred to the Court of Appeal for a decision, then it is mandated to so make the referral. The Court has no discretion to exercise in the matter. This is because it also settled law that the word “shall” connotes compulsion.
In the case of Agip (Nig) Ltd V Agip Petrol int’l (2010) 5 NWLR (Pt. 1087) 348, 419, the Supreme Court per Adekeye, JSC held:
“The word “shall” in the ordinary meaning is a word of command which is normally given a compulsory meaning because it is intended to denote obligation. When the word “shall” is used in a statute, it is not permissive it is mandatory, it imports that a thing must be done.”
See also Abdullahi V Military Admn. Kaduna State (2009) 15 NWLR (Pt. 1165) 417 (SC); Abiodun V AG Federation (2007) FWLR (Pt. 398) 7135, 7174; Ogidi V State (2005) 5 NWLR (Pt. 918) 286.
Contrary to the submission of the Respondent’s Counsel that the lower Court was right to have exercised its discretion in the matter and that this exercise of discretion should not be questioned by an appellate Court, that is not the position of the law when this constitutional provision has been brought into play. I again refer to the decision of the Supreme Court in FRN V Ifegwu (supra). Therein, the Supreme Court lay this issue to rest when Uwaifo, JSC further elucidated the provision of Section 295(2) supra as follows:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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“Therefore, it is plain that when the proper conditions for making reference are present the Court to which the request is made has no discretion. It is bound to make the reference. When all the parties involved make a request there is certainly nothing more to expect from the Court in order to make the reference. But when only one of the parties makes the request, still the provision says that it is mandatory on the Court to make the reference.” (Emphasis supplied)
The failure of the lower Court to accede to the request of the Appellant to refer for interpretation the constitutional provisions cited in the application, is made even worse by the further Order of the Court that it would await the decision of the Court of Appeal in a different matter to which the Appellant and the Respondent were not parties before making a final pronouncement on the application. For ease of reference, the learned trial Judge held:
“I find and spine (sic) that it is not necessary to refer this case to the Court of Appeal but to await the decision in Bakare Supra. I so Order.”
From the Record of Appeal, “Bakare’s case” is no other than the decision of the same Court in the case of AG V Bakare delivered by Abutu, J. sometime in 2007, (referred to earlier on in this judgment). The Appellant herein had relied on this decision to submit that there was no Extradition Treaty between Nigeria and the United States of America.
It is undisputed (as submitted oy Counsel for the Appellant) that the Appellant was nether a party to that case at the lower Court nor is he a party to the Appeal said to be pending before the Court of Appeal. It is ever more troubling and unnerving that no proof or evidence was placed before the lower Court to substantiate the mere assertion that there is actually in existence such a pending Appeal. Nothing was placed before the lower Court as to when the purported Appeal was filed, the Appeal number, whether the Appeal has been entered since it was filed, whether it has since been heard and disposed off one way or another, etc. Indeed, no process whatsoever evidencing the existence of such an Appeal, such as a Notice of Appeal, was placed before the lower Court. Yet surprisingly, the lower Court went ahead to place on hold and in effect, adjourn sine die, such solemn Extradition proceedings which are criminal in nature, as we has an application for the referral of a question involving the interpretation of constitutional provisions to the Court of Appeal, on such a tenuous, weak and speculative ground.
I do not agree with learned Counsel for the Respondent that the Appellant has the option of applying to join this speculative and uncertain Appeal as an interested party by virtue of Section 243 of the Constitution, in order that he receive a fair hearing. Apart from the fact that there is no evidence that such an Appeal exists, the requirement of “interested party” in that provision may not cover a litigant in unrelated proceedings in a suit which was filed long after the phantom Appeal.
In addition, the argument that the issue of the Extradition Treaty has been resolved in the case of Udeazor V FRN (supra) does not hold water. In the Appellant’s application, the question for which he seeks a referral to the Court of Appeal involves the interpretation of Sections 1(1), (3), 12(1) and 315 of the Constitution, as well as Section 1 of the Extradition Act, Cap. E25 Laws of the Federation, 2004 for the determination of the status of the Extradition Treaty between Nigeria and the United States of America. These provisions were not considered in Udeazor V FRN (supra).
It is therefore for all these reasons that I agree with the Appellant that there was no legal basis for the refusal of the learned trial Judge to refer the constitutional question arising from the proceedings before it to the Court of Appeal, the conditions for such a referral under Section 295(2) of the Constitution (supra) having been met. A purported pending Appeal in an un-related matter is neither a legal nor good reason for the refusal. I therefore reserve the sole issue for determination in favour of the Appellant.
Consequently, I find merit in the Appeal. It succeeds and is allowed. Accordingly, I grant the reliefs sought by the Appellant in his Notice of Appeal as follows:
1. The decision of the lower Court made on November 18, 2011, placing on hold the Extradition proceedings before it, pending the decision of the Court of Appeal in a purported Appeal against the decision of Abutu, J., in Suit no. FHC/L/333C/2006 between AG Federation V Abiodun Michael Bakare delivered on June 29, 2007, is hereby set aside.
2. I hereby make an Order directing the Hon. Chief Judge of the Federal High Court to re-assign these Extradition proceedings for re-hearing before a Judge of the High Court, other than B. Nyako, J., for the purpose of referring to the Court of Appeal the following question:
“Whether on a proper application of the provisions of Sections 1 (1), (3), 12(1) and 315 of the Constitution of the Federal Republic of Nigeria, 1999 to the provision of Section 1 of the Extradition Act Cap E25 Laws of the Federation 2004, there is in existence in Nigeria a legally enforceable Extradition Treaty between the Federal Republic of Nigeria and the United States of America as contained in the Extradition (United States of America Order) 1967.”
3. Thereafter, the pending Extradition Proceedings are to be heard and concluded by such Judge of the Federal High Court as the suit may be re-assigned to.
Parties are Ordered to bear their costs.
PETER OLABISI IGE, J.C.A.: I agree.
ABUBAKAR SADIQ UMAR, J.C.A.: I am in complete agreement with the reasons and conclusion adumbrated in the lead judgment just delivered by my learned brother, Jummai Hannatu Sankey, JCA, such judgment I was privileged to read before now.
In making a few comments of my own in support of the lead judgment I will not recapitulate the facts and circumstances leading to this appeal same having been adequately dealt with in the lead judgment.
I am of the opinion that the center point upon which this appeal is hinged on is on proper interpretation of Section 295 (2) of the Constitution of Nigeria 1999. It is settled position of law that where the provision of a statute is clear and unambiguous, the duty of the Court is to simply interpret the clear provision by giving the plain wording, their ordinary meaning without more. See ABACHA vs. F.R.N (2014) 6 NWLR (PT 1402) 43. If the Court however had averted its mind to the use of the word “shall” in Section 295(2) supra, it would not arrive at the conclusion it reached. There is no question of discretion in this regard rather it is a command to refer to the constitutional question arising from the proceeding before it to the Court of appeal. For the fuller reason, in the lead judgment I too find merit in the appeal. I endorse the consequential orders as mine in the lead judgment.
Appearances:
Mofesomo Tayo-Oyetiba, Esq., with him, Tosin Majekodunmi, Esq. For Appellant(s)
Not represented For Respondent(s)