In extradition cases, provisional warrant of arrest is predicated on extradition application

Justice Ibrahim Auta

Justice Ibrahim Auta

SUIT NO: FHC/L/CS/508/2015


Provisional warrant of arrest in extradition cases is always predicated on an extradition having been filed already in this Court by the Attorney General of the Federation not even by the NDLEA. So held the Federal High Court sitting at Lagos, by Hon. Justice O.E. Abang.

The judgment Creditor/Applicant’s learned Counsel argued the judgment Creditor’s application dated 5th June 2015 against the 2nd alleged contemptnor Chairman National Drug Law Enforcement Agency.

This application is similar to the application filed by him dated 2nd July 2015 against the Honorable Attorney General of the Federation. These applications are the same, the only difference is as regard the dated they were filed.
The application in the main prays the court to exercise disciplinary jurisdiction to set aside all steps/actions taken by the 1st and 2nd alleged contemptnors during the subsistence of court’s orders as contained in the judgment of this court dated 6th January 2014 in SUIT NO: FHC/L/CS/49/2010, subsisting order of this court dated 17th April 2015 in SUIT NO: FHC/L/CS/508/2015 and the judgment itself in SUIT NO: FHC/L/CS/508/2015 dated 27th May 2015. However, I have to resolve first the 2nd alleged contemptnor’s preliminary objection dated 8th June 2015. Creditor’s application dated 5th June 2015. The 1st alleged contemptnor did not oppose the objection. I have already held in this proceeding that there is no provision in the judgment Enforcement Rules made pursuant to the Sheriffs and Civil Procedure Act that a party is allowed to file a preliminary objection to a post judgment application to enforce the judgment of the court. Therefore the instant Notice of Preliminary Objection is unknown to Law. Notwithstanding this finding, I will still resolve the issue raised by the 2nd alleged contemptnor in her objection on the merit.

On the issue of the Applicant’s post judgment application being an abuse of Court’s process, there being a similar application before Buba J. of the Federal High Court bench filed by the Applicant, to start with, the originating processes filed and assigned to my noble lord Buba J. are not placed before this court in the 2nd alleged contemptnor’s application. The order claimed to have been made by his Lordship Buba J. is not before this court in the proceedings. I cannot speculate what is before Buba J. so as to come to a conclusion that the instant application is an abuse of court’s process. Even if the processes before Buba J. were to be placed before this court in the 2nd alleged contemptnor’s objection, the instant proceedings cannot be an abuse of court’s process. This is a post judgment application filed by the Applicant/Judgment Creditor. I have jurisdiction to entertain a post judgment application to enforce a subsisting judgment of this court.

The court cannot be functus officio in hearing an application to enforce its judgment. There is no pending suit before this court. There is a judgment in existence here. What is claimed to be before Buba J. is a pending suit that judgment has not been entered. The fact that there is a pending suit in another court cannot prevent this court in entertaining an application to enforce a subsisting judgment of the court.

As regard the issue of non personal service of the origination motion on the 2nd alleged contemptor, this is not an application to commit the 2nd alleged contemptnor to prison that would require personal service of the application or personal service of Forms 48 and 49 on her as the case may be.

It is sufficient that the application was served on the Learned counsel representing the alleged contemptnor. The notice of preliminary objection lacks merit. It is hereby dismissed. I so hold.

As regard the motion dated 5th June 2015 for the court to exercise its disciplinary jurisdiction over the steps and/or actions taken by the alleged contemptnors during the subsistence of valid orders of Court restraining them from taking those steps. Both Learned counsel for the 1st and 2nd alleged contemptnors were heard on the Applicant’s motion dated 5th June 2015 on the issue of law arising from the application. The law is settled here that where there are subsisting orders of Court that have been flouted by a party before the court, the court that made the orders on application of the person in whose the orders were made has inherent jurisdiction to exercise disciplinary jurisdiction in setting aside the steps or actions taken by defaulting party.

That is to undo what has been done while the orders subsisted.

The case of EZEBU VS. FATB LTD (1992)1 NWLR PT. 220 P.125. is instructive where an order of court is disobeyed, the court must invoke its disciplinary jurisdiction to curb excesses of a recalcitrant party.

In Okaya vs. Santilli (1991) 7NWLR PT 206 P. 753, it was held that unless the court exercises its disciplinary jurisdiction in appropriate circumstances, the court will lose its dignity and integrity in the judicial process. That the court will be reduced to a toothless bull-dog which can only bark but cannot bite. Also see also the decision of the United State of American Supreme Court in the case of the Jones Vs. Securities and Exchange Commission 80(1935)LED P.1015.
See also the English case of Daniel vs. Ferguson (1891)2CHD27 On the same principle that court must take positive and mandatory act in order to instill judicial discipline on the erring, recalcitrant party that flouts court’s orders or proceedings in order to maintain, restore and preserve the dignity and respect of the court. Even the recent decision of the Supreme Court in AMECHI VS. INEC Supra is relevant here.

Having started the principle of law, can it be said that the alleged contemptnors herein flouted the orders of this court dated 6th January 2014, 17th April 2015 and 7th May 2015 in suit NO: FHC/L/CS/49/2010, FHC/L/CS/508/2015 respectively? However, it is worthy to observe that the 2nd alleged contemptnor in her affidavit in support of the preliminary objection responded to the Applicant’s affidavit in support of application dated 5th June2015. The Court considered same in this ruling. No appeal has been filed by the 2nd alleged contemptnor.

Exhibit attached to her affidavit in support of the preliminary objection is not an appeal filed. There is nothing on the face of the document to show that an appeal has been filed against the decision of this Court dated 27th May 2015. On 6th January2014 in suit NO: FHC/L/CS/49/2010, in a judgment delivered, this court restrained the Honourable Attorney General of the Federation and NDLEA with other security agencies from arresting, harassing, detaining or prosecuting the Applicant on allegations contained in the petition dated 18th December 2009 or any similar petition containing the same or similar allegations which have already been investigated by Interpol or litigated upon and upon which the Applicant has been exonerated by two courts in United Kingdom. The petition contained allegations that the Applicant was indicted in drugs related offences in United States of American and UK courts cleared him of the alleged involvement. The restraining order has not been appealed against. It subsists.

My Lords, it is the same allegations that form the basis of the application to extradite the Applicant to American to face trial. Both the Attorney General of the Federation and NDLEA could have validly acted on any application for his extradition before 6th January 2014 before the judgment was entered but after the judgment would have been entered, the Honorable Attorney General of the Federation and NDLEA cannot act on an application for the extradition of the applicant. This position has been made clear in the judgment in suit no. FHC/L/CS/508/2015. They can only do so if we are in the regime of the rule of might. So long as we are in the regime of the rule of law which prevails over the rule of might, no valid extradition application can be entertained by this court during the subsistence of these two judgments . Everybody is equal before the law. The law is supreme.

The NDLEA was served the exparte order on 20th March 2015. No application was made by the NDLEA for it to be discharged or varied. The exparte order was made for the alleged contemptnors to stop further actions on the application to extradict the Applicant. It was this subsisting order that was flouted by the NDLEA on 23th May 2015 when they occupied or laid siege on the Applicant’s home in Lagos. The action of NDLEA was a clear abuse of official power with improper motive, indecent, repulsive, arbitrary, and reprehensible to the extreme for NDLEA to take laws into its hands in unlawfully seeking to arrest the Applicant while the restraining order was still in force.

The provisional warrant claimed to have been signed by a judge of this court was signed in want of jurisdiction. The judge was misled before signing the warrant. NDLEA did not inform judge that there was a subsisting order restraining them from taking further actions on the matter pending delivery of judgment reserved for 27th May 2015. The provisional warrant placed before the court by both parties does not even indicate the name of the judge that signed it. It is not clear on the face of the warrant if it was a Federal High Court judge or a Magistrate that signed the Warrant.

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