A Federal High Court in Abuja has ordered the federal government to refrain from extraditing former member of the Nigerian Senate, Senator Buruji Kashamu, to the US over the allegation of drug pushing.
Senator Kashamu had instituted a suit marked FHC/ABJ/CS/530/18 against Abubakar Malami, Attorney General of the Federation (AGF) and Minister of Justice and the National Drug Law Enforcement Agency (NDLEA), praying the court to stop both respondents from extraditing him to the US.
Kashamu challenged the authority of the AGF in requesting the U.S. Embassy in Nigeria to forward a fresh extradition application after the judgment by Gabriel Kolawole, former Judge of the Federal High Court, in suit suit No: 479/2015, voided an earlier extradition proceeding.
Delivering judgment on Thursday, Justice Okon Abang, a Judge, held that the federal government lacked the powers to seek an extradition order having failed to challenge subsisting court orders and judgments restraining them from proceeding with the extradition.
Abang said the judgment delivered on January 6, 2014 (in suit No:49/2010) by the federal high court, Lagos and another judgment of July 1, 2016, given by the Federal High Court, Abuja, (in suit No: 479/2015), which stopped Kashamu’s extradition on account of the U.S. drug allegation, are still subsisting.
The Judge added that Kolawole’s judgment, in nullifying the earlier extradition proceedings, was based on two judgments of the federal high court in suits Nos: 49/2010 and 508/2015, which declared the etradiction attempt as unlawful due to judgements by two British courts which held that Kashamu was not the person involved in the drug crime in the US.
Abang held that, since the judgment in suit No: 49/2010 which contained a specific order restraining the AGF from exercising his power of extradition under the Extradition Act, was not challenged, it remains alive along with the restraining order.
He also voided the letter written by the AGF’s office on July 14, 2016, on the grounds that the neither the AGF nor his agent has the power under any law to apply to a foreign country, requesting for the extradition of a citizen where that country has not made such an application.
“The effect of the Court of Appeal dismissing the appeal against the judgment in suit No: 49/2010 is that the said judgment has validated in all its ramifications, inclusive of the restraining order in that judgment, ” Abang held.
“It is my humble view that the AGF has no discretion in this matter. With the greatest respect to the AGF, he has no choice in this matter.
“The fact that the restraining order in the judgment in suit 49/2010 dated January 6, 2014 is still valid and subsisting, it is not a matter of sentiment.
“In fact, it is not a political issue. We don’t practice democracy in court, no matter how the politicians look at it. The politicians can look at it the way it favours them. But, sitting as a court of law, where there is no appeal against a judgment, that judgment subsists.
“This is an issue of law. Where there is no appeal against a judgment, there is nothing anybody can do in a democratic setting. If the restraining order ought not to have been made, the AGF ought to have appealed against it. The attorney general of the federation, with the greatest respect to him, cannot pretend that the restraining order is no longer subsisting. The 1st defendant (AGF) cannot assume that the order was not made in good faith even when he participated in the proceedings.
“The 1st defendant appealed successfully and got judgment in suit No: 508/2015, that was set aside. Why did the AGF not appeal against the judgment in suit No:49/2010? Why did the AGF not appeal that judgment even when the court of appeal recently dismissed an appeal against the judgment? I appreciate the fact that current AGF was not in office when this judgment was delivered on January 6, 2014. I really sympathise with him. he inherited it.
“Except if the decision of the court of appeal on September 20, 2018, dismissing the appeal against the judgment in suit 49/2010 is validly set aside on an appeal to the Supreme Court, the AGF cannot validly take steps that run contrary to the subsisting judgment of this court. That will be an invitation to anarchy.”