By Emem Ekpenyong
FRN v KANU (2023) LPELR – 79929 (SC) Part 8
The SC held that the CA wrongfully applied Section 15 of the Extradition Act
ISSUE – WHETHER THE PROVISIONS OF SECTION 15 OF THE EXTRADITION ACT GOVERNING THE DETENTION AND TRIAL OF PERSONS LAWFULLY SURRENDERED TO NIGERIA ARE APPLICABLE IN CASES OF EXTRAORDINARY RENDITION
“The other reason the Court of Appeal gave for holding that the Respondent cannot be detained, tried or otherwise dealt with in Nigeria and that it had no jurisdiction to try the Respondent is that by virtue of S.15 of the Extradition Act Cap. E25 LFN 2004, the offences in respect of which they seek to try him were allegedly committed before he was abducted and kidnapped in Kenya and brought to Nigeria.
S.15 of the Extradition Act provides that- “Where, in accordance with the law of any country within the Commonwealth or in pursuance of an extradition agreement between Nigeria and another country (whether within the Commonwealth or not), any person accused of or unlawfully at large after conviction of an offence committed within the jurisdiction of Nigeria is surrendered to Nigeria by the country in question, then, so long as he has not had a reasonable opportunity of returning to that country, that person shall not be detained (whether under this Act or otherwise), tried or otherwise dealt with in Nigeria for or in respect of an offence committed by him before his surrender to Nigeria other than- (a) The offence for which he was surrendered or any lesser offence which may be proved by the facts on which his surrender granted; or (b) Any other offence (being one corresponding to an offence described in Section 20 of this Act) of the same nature as the offence for which he was surrendered: provided that a person falling within this section shall not be detained or tried for an offence by virtue of paragraph (6) of this Section without the prior consent of the country surrendering him”.
It is obvious from the wordings of this provision that it applies only to surrender of a person by another country to Nigeria in accordance with the law of that country or in pursuance to an extradition agreement between that country and Nigeria. It is not in dispute in this case that Kenya did not surrender the Respondent to Nigeria that the officials and agents of Nigeria abducted, kidnapped the Respondent in Kenya and brought him to Nigeria without following the Extradition Act of Kenya and that of Nigeria. He was extraordinarily renditioned to Nigeria. It is obvious that Kenya did not consent to the removal of the Respondent to Nigeria. S.15 of the Extradition Act by its express mention of consensual surrender in accordance with law excludes illegal removals and therefore cannot apply to the abduction or kidnap and removal of an alleged fugitive from another country to Nigeria or the extraordinary rendition of an alleged fugitive from a country to Nigeria. For the above reasons, I hold that the Court of Appeal wrongly applied S. 15 of the Extradition Act. Its decision that the Court lacks the jurisdiction to try the offences in counts 1, 2, 3, 4, 5, 8 and 15 allegedly committed by the Respondent before he was illegally brought from Kenya and that the Respondent cannot be tried for those offences is wrong.”
Per EMMANUEL AKOMAYE AGIM ,JSC