A Federal High Court in Abuja on Monday rejected the extradition application filed by the Federal Government for permission to extradite the suspended Deputy Commissioner of Police (DCP) Abba Kyari to the United States (US).
The US authorities had applied to the Federal Government for Kyari’s extradition in relation to his alleged link with alleged internet fraudster, Ramon Abbas (Hushpuppi).
The United States Attorney’s Office for Central District of California, Los Angeles, confirmed last week that hushpuppi will be sentenced on September 21, 2022.
Justice Inyang Ekwo, in a judgment on Monday held that the extradition application, filed by the Attorney General of the Federation (AGF), was an abuse of court process on the grounds that Kyari was already standing a criminal trial before a Nigerian court.
Justice Ekwo also held that since the laws requires that his fiat be first obtained by the National Drug Law Enforcement Agency (NDLEA) before initiating criminal cases, the AGF could not claim to be unaware of the earlier charge filed against Kyari by the NDLEA.
The judge further held that the extradition application was filed in bad faith, bereft of merit and ought to be dismissed.
He noted that the eight-count charge (on which Kyari and others are being tried before Justice Emeka Nwite of the Abuja division of the Federal High Court was filed on February 18, 2022 while the extradition application was filed on March 2, 2022.
The judge said: “By the role given to the Attorney General of the Federation in Section 10 of the NOLEA Act, the National Drug Law Enforcement Agency commences criminal proceedings in court by his (AGF’s) fiat.
“Indeed, charges under the NDLEA Act, are normally brought in the name of the Attorney-General of the Federation.
“Therefore, the Attorney-General of the Federation, being the applicant in this case, cannot say that at the time this application was initiated on 2nd March, 2022, he was not aware of the pendency of the criminal proceedings in charge No. FHC/ABJ/CR/57/2022, FRN v. DCP Abba Kyar! & Ors. (Exh. 2) which was commenced on 28th February, 2022.
“The position of the law in Section 3(6)(a) of the Extradition Act is that a fugitive criminal who has been charged with an offence under the law of Nigeria or any part thereof, not being the offence which his surrender is sought, shall not be surrendered until such time as he has been discharged whether by acquittal or on expiration of the sentence or otherwise.
“By the wording of Section 3(6)(a) of the Extradition Act, the law mandatorily estops the Court from making an order to surrender a fugitive who has been charged with an offence under the law of Nigeria or any part thereof, not being the offence which his surrender is sought until such time as he has been discharged whether by acquittal or on expiration of the sentence or otherwise. This, in my opinion, is plain and easy to understand,” he said.
Justice Ekwo noted that the criminal proceedings in charge: FHC/ABJ/CR/57/2022 – FRN v. DCP Abba Kyari and others, brought pursuant to the NDLEA Act, which was commenced on 28th February, 2022, meant that Kyari has been charged with an offence under the law of Nigeria, not being the offence for which his surrender is sought, as provided for in Section 3(6)(a) of the Extradition Act.
Ekwo added: “The consequence of this provision is that the respondent shall not be surrendered until such time as he has been discharged whether by acquittal or on expiration of the sentence that may be imposed or otherwise at the conclusion of that trial.
“The provision of Section 3(6)(a) of the Extradition Act preserves the integrity of the municipal laws of the country to which request for surrender of a citizen, who is considered a fugitive is made.
“Therefore, in my opinion, the Legislature intended, by the provision of Section 3(6)(a) of the Extradition Act, to preserve the integrity of the municipal laws of Nigeria in extradition proceedings. The intention of the Legislature must be upheld whenever the cause arises, as in this case.
“Furthermore, by Section 3(2)(a) of the Extradition Act, this court is empowered not to make an order for surrender where the request, though purporting to be made in respect of extradition crime is not made in good faith.
“The phrase ‘good faith’ has an enlarged scope in its character and transcends limitations.
“In the context of this case, good faith would mean a conscionable exercise of obligation by vi statute, law or office, especially of the applicant.
“The requirement of good faith in the affairs of men is eternal and the standard thereof in judicial proceedings suffers no excuses.
“Therefore, the applicant, being the Attorney-General of the Federation and in a position to know, and actually knowing that the respondent is standing trial in this court on offences bordering on the provisions of the NDLEA Act, did not have to bring this application in view of the provision of Section 3(6)(a) of the Extradition Act.
“Exercise of good faithwould require that the applicant restrained himself from bringing this application since the respondent is standing trial in a court of competent jurisdiction to his knowledge until the conditions stated in the provision have been fulfilled.
“In the end, I find that this application is not brought in good faith. It is also in breach of the provision of Section 3(6)(a) of the Extradition Act and cannot be allowed.
“By that fact, it Is incompetent. It is equally bereft of merit and ought to be dismissed. I make an order dismissing this application,” Justice Ekwo held.
