By Yejide Gbenga-Ogundare
Over time, it has been established that one of the challenges facing the rule of law and administration of justice in Nigeria is the rise in the abuse of court process by lawyers and litigants making the course of litigation complex and tortuous through diverse applications and duplication of same processes before different courts which often is deemed frivolous and a waste of court time.
This usually causes drama and confusing interpretation of the provisions of the law. And sometimes, judges sitting on such cases also add to the confusion by allowing frivolities to scale through and also by giving controversial rulings that lead to argument due to limitations of the rule of law and the obvious lacuna in the Nigerian legal system.
Many cases that are simple applications and would have been dispensed with quickly are consequently before the courts for years, creating unnecessary drama especially when personalities involved are high profile or recognized people in the society; adding to the rot in the judiciary and undermining the power of the judiciary to dispense justice effectively and eroding the people’s confidence in the system.
Many cases had faced this difficulty and had suffered unnecessary drama as a result of perceived abuse of legal process. One of such is the extradition application against a serving member of the senate, Senator Buruji Kashamu representing Ogun East Senatorial District of Ogun State, the matter has dragged moving in and out of diverse courts and before different judges for years.
The drama opened like a stage play in a theatre on May 27, 2015 when the Attorney General of the Federation (AGF) applied to a Federal high court sitting in Abuja asking for the extradition of Senator Kashamu on allegations of certain criminal indictments of a criminal act he allegedly perpetrated in violation of the United States Drugs Law. The suit delineated FHC/ABJ/CS/479/2015 was filed on the eve of the departure of Mohammed Bello Adoke (SAN) from office as the AGF while a similar case was already before a Federal High Court sitting in Lagos.
The court in its ruling on the application given by Justice G.O. Kolawole on July 1, 2015 however dismissed the suit on the ground that the AGF’s office being an office created by the constitution has a greater obligation to be seen as law abiding and should give maximum and unqualified respect to every judgment of a court of competent jurisdiction regardless of its opinion as to whether it was right or wrong until such decisions are set aside by the appellate court.
The court further held that to do otherwise is to further deepen an incipient culture of disobedience to court orders and unmitigated acts of unbridled impunity to judicial process even by the citizenry and the proverbial common man whose last hopes lies in the judiciary, noting in particular that he is aware that certain proceedings were already on in the Lagos division of the Federal High Court on the same matter, adding that he had exercised restraint based on the injunction of the Supreme court that where a court is clearly aware that another court of coordinate jurisdiction is seised of a case with the same parties and subject matter before it, it is an abuse of process for that court to continue with the hearing of the case.
This however did not put the matter to rest as it continued to break forth in diverse acts and scenes without a curtain call. And between 2015 and this year, Senator Kashamu, tired of what he termed undue intimidation, harassment and planned abduction had written protest letters through his lawyers to express his dissatisfaction.
Indeed, in his letter to the AGF, he raised a six-point poser asking whether the AGF’s Office is aware of the two British judgments in his favour which was proved by the British High Commission in a letter dated April 27, 2015 indicating that he was free from extradition proceedings in their country between 1998 and 2003 because the Magistrate was not satisfied that he had a case to answer. He also asked whether the AGF is aware that the purported extradition suit that was instituted against him after the 2015 abduction plot orchestrated by the immediate past administration failed was dismissed by Justice Kolawole who described the action of the NDLEA as “a show of shame”, adding that the judgment and another one in the suit delineated FHC/L/CS/49/2010 are still subsisting and valid, as they are yet to be appealed and/or upturned on appeal.
“With all these facts of my exoneration by two British courts in a case instituted by the American government, the facts of which are available to the Honourable Minister of Justice, how can anyone rightly seek to subject me to another round of extradition proceedings when we had joined issues in a foreign land (the United Kingdom) – which is better known as US’ closest ally – and the courts found that I am not the person being sought for the drug crime? What is more, the two British court judgments in my favour were not and have not been appealed till date.
“Now, if as stated in your 14th July, 2016 letter that no further steps could be taken until the appeals are determined one way or the other, can any steps be truly and validly taken in view of the subsistence of the two final judgments of the British courts which are yet to be appealed till date? This is in addition to the subsisting orders and judgments in FHC/L/CS/49/2010 and FHC/ABJ/CS/479/2015,” he stated.
Kashamu also added, “The Extradition Act LN 33 1967 between Nigeria and USA recognized the Extradition Treaty between USA and Great Britain. Signed in London on 22nd December, 1931, the treaty reads in part, ‘Whereas the extradition Treaty concluded between the United States of America and Great Britain and signed at London, on 22nd December 1931 for the surrender of fugitive offenders, has been recognized as binding on Nigeria subject to the modification specified in Schedule 1 hereto.’
“It was this Treaty of 1931 between USA and Britain that prompted the extradition application to the Great Britain by USA against me as seen in ANNEXURES 2 & 3 above. It has been shown that in ANNEXURE 3, the Bow Street Magistrate Court found that no prima facie case has been made out. That finding is binding on the USA and United Kingdom and her colony-Nigeria, which adopted the said 1967 Treaty. Therefore, the judicial proceedings in the British court are binding on Nigeria. It is clear that by virtue of Section 3 (4) (b) of the Extradition Act Cap E.25, I had been acquitted and same application cannot be brought against me any longer.”
In a letter written by K.T Turaki to the AGF on January 25, 2016 on the matter, he stated that as a party to most of the suits instituted by Senator Kashamu where there is no any appellate court decision yet setting aside the extant judgments, the AGF as the Chief Law Officer of the Federation and member of the revered inner bar is not only under a normal duty but a constitutional duty and obligation to ensure that the process of our courts are not abused by agencies of government and that the sanctity of their extant orders, regardless of whatever issues may ex facie be apparent on them are preserved and perfected.
“By virtue of the Extradition Act Cap E25, Laws of the Federation of Nigeria 2004, you are statutorily empowered to handle and coordinate all requests for extradition of any suspect in Nigeria by any country with whom Nigeria has extradition treaty. We verily believe that the purported request for our client’s extradition was only a call for the collaboration of your good offices and other security forces with the American government to harass, intimidate and punish our client for no justifiable reasons,” he said.
Senator Kashamu however seems to have the provisions of the law firmly in his corner as legal experts have expressed the opinion that the judgment of the Lagos Division of the Court of Appeal which set aside the judgments and orders made in respect of a fundamental human rights case on the basis of being speculative should be tested at the Supreme Court since the 1999 Constitution provides for the institution of a case once a citizen has reasons to suspect that his fundamental human rights “has been, is being or is likely to be contravened” as expressly captured in Chapter IV, Section 46 (1) of the 1999 Constitution.
They contended further that the law should be applied dispassionately to all and sundry, based on jurisprudence and precedents, and not based on personalities or other extraneous considerations.
Indeed, Chief Wole Olanipekun (SAN) was succinct in his opinion that there is no justification in pushing for extradition of Senator Kashamu by the Federal Government as there is nothing in any of the two judgments of the Court of appeal calling for his extradition from within or without Nigeria as the appellate court did not dismiss any challenge by the senator to his extradition process.
According to Olanipekun, the judgments of the two British courts are judgments that are binding on all persons and parties to the proceedings, including but not limited to the Nigerian government. He also added, “With further respect, we wonder if any country in the world would push for the extradition of its citizen in the peculiar and glaring circumstances of this case.”
As the drama continues, legal luminaries contend that the case of Senator Kashamu further underscores the abuse going on in the Nigerian judiciary and the lacuna in the constitution.
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