BY JOHNMARY CHUKWUKASI JIDEOBI,
Esq.
![image](/2021/07/Justice-Ejembi-Eko-1.jpg")
![image](/2021/08/lawp.jpg")
INTRODUCTION:
![image](/2021/07/escrow-service1.jpg")
One of the most popular quotes credited to Friedrich
Wilhelm Nietzsche a [German philosopher, whose work has
exerted a profound influence on intellectual history] is that
“He who fights with monsters should look to it that he himself
does not become a monster . . . when you gaze long into the abyss
the abyss also gazes into you”. The Latin phrase,
“Quis custodiet ipsos custodies”, originated from
the Satires of Juvenal, [the
1st–2nd century Roman satirist]. It is literally translated as
“Who will guard the guards themselves?” These two
nuggets plucked from the works of Friedrich
Nietzsche and Juvenal, very aptly, in
their aggregate, describes the mood of the Nigerian nation since
the warrant of arrest issued against ABBA ALHAJI KYARI, by the
United States Court, became a public knowledge.
FACTUAL BACKGROUND:
On the 12th day of February, 2021,
the United States of America filed a Criminal Complaint before the
United Stated District Court for the Central District of California
in Case No. 2:21-mj-00760-DUTY against six (6)
named Defendants of Nigerian origin. Of the six Defendants, the
name of the 4th Defendant, ABBA ALHAJI KYARI has raised
enormous dusts yet to settle within the firmament of Nigeria for
reasons that are all too obvious. The reason is because of the
personality of the 4th Defendant that seems to loom
large within the Nigerian law enforcement circle particularly the
Nigerian Police Force where he currently ranks as a Deputy
Commissioner of Police. Who then is ABBA ALHAJI KYARI? At
paragraphs 28 and 29 of the Affidavit in support
of the Criminal Complaint filed against him before the US District
Court, the Deponent, ANDREW JOHN INNOCENTI, who
described himself as “a Special Agent with the Federal Bureau
of Investigation (“FBI”) and have been so employed since
approximately March, 2015”, has this to say about the
personality of ABBA ALHAJI KYARI:
28: I reviewed online articles about KYARI, which indicated
that KYARI is an Inspector General of the Police’s Intelligence
Response Team and a Deputy Commissioner of Police in Nigeria. KYARI
previously managed the Special Anti- Robbery Squad, commonly known
as SARS, as the Officer-In-Charge for several years. Articles
referred to KYARI as a “super cop” of the Nigeria Police Force, and
described him as “The Most Decorated Officer In The History Of The
Nigerian Police.” KYARI has been awarded many accolades, including
recognition for his performance by the Nigerian House of
Representatives in June 2020, which KYARI informed ABBAS of via the
news article discussed above. I also reviewed other articles, from
October and November 2020, which indicated that KYARI had been
accused of falsely arresting and extorting a businessman in Lagos.
Based on those articles, KYARI’s work, in general, appears to have
related primarily to kidnapping cases, and I did not see any
articles suggesting that KYARI worked on fraud cases.
- Finally, I have reviewed a certified NIV application
submitted by ABBA ALHAJI KYARI, in April 2019. This application
included one of the aforementioned phone numbers (09099999131) that
KYARI used to communicate with ABBAS, as well as a date of birth in
March of 1975, and KYARI’s Nigerian passport number ending in 3677.
The NIV application also included the following photograph, which
is consistent with the other photographs of KYARI shown
above:
In his article titled: “ABBA KYARI AND THE MAGGOTS IN
HUSH PUPPIES’ PHONE” Dr. Ugoji Egbujo
described Abba Kyari as “an enigma. A detective who craves
the limelight.”
Suffice it to add that the charges piled up against ABBA KYARI
and other Defendants border largely on internet fraud running into
Hundreds of Thousands of United States Dollars.
OBJECT OF THIS WRITE-UP:
The focal objective of this write-up is to examine the position
of the law as to whether the Extradition Treaty which the United
States of America is banking on as the legal basis for seeking ABBA
KYARI’S extradition is one cognizable under the extant Nigerian
Law. The Treaty under consideration here is the Extradition
Treaty between the United States of America and Great Britain,
signed at London, on 22nd December 1931. This article
contends, vociferously, that the application of Extradition
Treaty between the United States of America and Great Britain,
signed at London, on 22nd December 1931 in extraditing
ABBA KYARI will do violence to the impregnably inviolable
Section 12(1), (2) & (3) of the amended 1999 Constitution
of the Federal Republic of Nigeria. Coterminous with the
foregoing, the Federal High Court and indeed every other Court in
the land is drained of the requisite jurisdiction to enforce
unincorporated treaties, like the Treaty under consideration, just
as the Honourable Attorney-General of the Federation [and indeed
all Agencies of Government] are without the locus standi
to activate or seek to enforce unincorporated treaties whose
application in Nigeria are clearly forbidden by the Constitution,
the organic law.
THE KERNEL:
To get our bearings right, we shall proceed to pluck out from
the Statute book the provision of Section 12(1), (2) & (3)
of the amended 1999 Constitution couched in this
unmistakable language:
(1) No treaty between the Federation and any other country
shall have the force law except to the extent to which any such
treaty has been enacted into law by the National
Assembly.
(2) The National Assembly may make laws for the Federation
or any part thererof with respect to matters not included in the
Exclusive Legislative List for the purpose of implementing a
treaty.
(3) A Bill for an Act of the National Assembly passed
pursuant to the provisions of sub-section (2) of this section shall
not be presented to the President for assent, and shall not be
enacted unless it is ratified by a majority of all the Houses of
Assembly in the Federation.
There is no doubt that under international law, treaties are
seen as contracts between states and if they do not receive the
consent of the various states, their provisions will not be binding
upon them. The fundamental principle of treaty law is undoubtedly
the proposition that treaties are binding upon the parties to them
and must be performed in good faith. Under Article 11 of
the 1969 Vienna Convention on the Law of Treaties, it is
now firmly settled that among other ways, a state may signal its
consent to international agreements by signature, exchange of
instrument constituting a treaty, ratification, acceptance,
approval or accession. All students of international law would
recall the never-ending battle between domestic and foreign courts.
Thus, the place/fate of foreign laws/treaties before domestic
courts vis-a- vis the place/fate of municipal laws before foreign
courts have remained an enduring debate in the field of
International law world over. While foreign courts/international
tribunals have consistently held that municipal laws are amenable
to foreign laws/treaties, the municipal courts of many nations have
taken the opposite direction in consistently holding that foreign
laws/treaties are amenable to domestic laws. In this regard, while
interpreting Article 46(1) of the 1969 Vienna Convention on
the Law of Treaties, the International Court of
Justice held in the case of Cameroon V. Nigeria (Judgment)
(2002) that a state cannot plead a breach of its
constitutional provision as to the making of treaties as a valid
excuse for condemning an agreement and resiling therefrom.
In contradistinction to the above position held by foreign
courts, the House of Lords in England has come to the settled
conclusion that “except to the extent that a treaty
becomes incorporated into the laws of the United Kingdom by
statute, the courts of the United Kingdom have no power to enforce
treaty rights and obligations at the behest of a sovereign
government or at the behest of a private individual”
and further reaffirmed in the very recent case of A (FC)
and Others (FC) v. Secretary of State for the Home Department
(2005) UKHL 71 where it was held that “a
treaty, even if ratified by the United Kingdom, has no binding
force in the domestic law of this country unless it is given effect
by statute or expresses principles of international
law”. The position is no different in the United
States of America. The question of a possible conflict between
treaty obligations and domestic legislation was raised in
Diggs v. Schultz 470 F. 2d 461, where the Supreme
Court of the United States came to the conclusion that
“under our constitutional scheme, Congress can denounce
treaties if it see fit to do so, and there is nothing the other
branches of government can do about it”. In Nigeria,
the position is no different as our own Supreme Court has had the
opportunity to show the Nigerian position. When called upon to
interpret and apply Section 12 of the 1979
Constitution, which is identically worded with and a
replica of Section 12 of the amended 1999
Constitution, the Nigerian Supreme Court in Abacha
v Fawehinmi [2000] 6 NWLR Part 660 at page 340 [through
Ogundare, J.S.C. who wrote the leading judgment] magisterially
intoned thusly:
Before its enactment into law by National Assembly,
an international treaty has no such force of law as to make its
provisions justiciable in our courts. See the recent decision of
the Privy Council in Higgs & Anor. V.
Minister of National Security & Ors. The
Times of December 23, 1999 where it was held
that-
“In the law of England and the Bahamas, the right to
enter into treaties was one of the surviving prerogative powers of
the Crown. Treaties formed no part of domestic law unless enacted
by the legislature. Domestic Courts had no
jurisdiction to construe or apply a treaty, nor could
unincorporated treaties change the law of the land. They had
no effect upon citizen’ right and duties
in common or statute law…”
In my respectful view, I think the above passage
represents the correct position of the law, not only in England,
but in Nigeria as well. [italics and
underlining supplied by us for emphasis].
In the same report, Per Iguh, J.S.C. with authoritative finality
intoned thusly:
“…unincorporated treaties cannot change any aspect
of Nigerian Law, even though Nigeria is a party to those treaties.
Indeed, unincorporated treaties have no effect upon the rights and
duties of citizens either at common law or statute law… By the
time-honored doctrine of precedent as it operates in Nigeria and
all common law countries, the decision on a given issue of law
handed down by the apex court, which for us in Nigeria is the
Supreme Court, is not only superior but binds all subordinate
courts, including all courts exercising appellate jurisdiction…
Consequently, it is an exception rather than the rule for a state
party to a treaty to contract out and defeat the legitimate
operation of a treaty to which it is a signatory by derogating from
the treaty through passing a municipal law inconsistent with the
treaty. Since a state at any moment despite the provisions of a
treaty that it is a signatory to, is at liberty to withdraw its
involvement in the treaty, it follows that a state’s treaty
obligations can be neutralized by enacting a new legislation
inconsistent with those obligations. But this is without prejudice
to any remedies available against the recalcitrant slate in
international law at the instance of the other states parties to
the treaty. In variably, this is a political decision involving
such sanctions that the other states signatory to the treaty may
deem fit to impose, See AH. Robertson
Human Rights in National and international
Law, (1968 Ed.) p. 12, Ian
Brownlie, Principles of’ Public
international Law (4th Ed.) J.G.
Starke, introduction to international
Law, 9th Ed, pp. 413 – 415,
and Macurthys Ltc!. v.
Smith (1979) 3 All E, R. 325 at 329 pg
22.”
In his own effulgent contribution, EJIWUNMI, J.S.C, in casting
his lot with the Leading Judgment, adroitly ventilated the seasoned
view in sync with the Leading Judgment. This is what His Lordship
said:
It is therefore manifest that no
matter how beneficial to the country or the citizenry an
international treaty to which Nigeria has become a signatory may
be, it remains unenforceable, if it is not enacted into the
Jaw of the country by the National Assembly. This position is
generally in accord with the practice in other countries. In the
recent case of Higgs & aI/or. v. Minister of National Security &
Ors….If such a treaty is not incorporated into the
municipal law, our domestic courts would have no jurisdiction to
construe or apply it. Its provisions cannot therefore have
any effect upon citizens’ right and duties.
The law is abecedarian to the effect that a trial without
jurisdiction is a nullity and that where a court takes upon itself
to exercise power under jurisdiction which it does not possess; its
decision is tantamount to nothing. It has been stated that
jurisdiction is the very basis on which any court tries a case as
it is the life of all trials. This is because a trial without
jurisdiction is a nullity, Garba v. Sheba Int. (Nig.)
Ltd. (2002) 1 N.W.L.R. (Pt. 748) 372 @ 388-389, per Muhammed,
J.C.A. In ventilation of this trite view, the Supreme
Court, per KARIBI-WHYTE, J.S.C, in MATARI & ORS V
DANGALADIMA & ANOR (1993) 3 NWLR (PT 281) 266
authoritatively pronounced thusly:
The issue of jurisdiction is without doubt,
fundamental and decisive of the question of adjudication. It is
well settled that the decision of any Court reached without
jurisdiction is void ab initio and the decision is of no effect,
see U.A.C. Limited v. Macfoy (1961) 3 All ER
1169.”
The argument, in some quarters, that the Extradition
Treaty between the United States of America and Great Britain,
signed at London, on 22nd December 1931 is part
of Statutes of General Applications is inherently false. This why;
Section 32(1) and (2) of Interpretation Act provides for the
grafting of statutes of general application into Nigerian laws. We
shall pluck it out from the statute book and reproduce it ipsissima
verba thusly:
(1) Subject to the provisions of this section and except in
so far as other provision is made by any Federal law, the common
law of England and the doctrines of equity, together with the
statutes of general application that were in force in England on
the 1st day of January, 1900, shall, in so far as they relate to
any matter within the legislative competence of the Federal
legislature, be in force in Nigeria.
(2)Such Imperial laws shall be in force so far only as the
limits of the local jurisdiction and local circumstances shall
permit and subject to any Federal law.
Implicit in the above provision is that it is only those
statutes of general application that “were in force in
England on the 1st day of January, 1900, shall” be in
force in Nigeria and NOT those AFTER 1st January, 1900.
Express mention of one thing is the express exclusion of the other.
In AG. ONDO V. AG. EKITI STATE (2001)
LPELR-622(SC), the Supreme Court explained this principle
of interpretation well. This is what ThierLordships taught:
“… This is in accord with the accepted principle of
interpretation expressed in the Latin maxim expressio unius est
exclusio alterius or expressum facit cessare taciturn. The two
related principles mean firstly that “to state a thing expressly
ends the possibility that something inconsistent with it is
implied.” Secondly “to express one thing is impliedly to exclude
another” which is an aspect of the latter. This principle of,
construction is applied where a statutory proposition might have
covered a number of matters but in fact mentions only some of them.
Unless those mentioned are mentioned only as examples, or ex
abundanti cautela, or for some other sufficient reason, the rest
are taken to be excluded from the
proposition.”
In BUHARI & ANOR V. YUSUF & ANOR (2003) LPELR-812
(SC) Their Lordships of the Apex Court gave a path-marking
insight into this interpretational canon thusly:
“The principle is well settled that in the
construction of statutory provisions, where a statute mentions
specific things or persons, the intention is that those not
mentioned are not intended to be included. This is the expressio
unius est exclusio alterius rule, meaning that the express mention
of one thing in a statutory provision automatically excludes any
other which otherwise would have been included by implication. see
Ogbunyiya v. Okudo (1976) 6-9 SC 32; Udoh v. Orthopaedic Hospital
Management Board (1993) 7 NWLR (Pt. 304)
139.”
The lines which Their Lordships have drawn in the above cases
lead us to safely surmise that the Extradition Treaty
between the United States of America and Great Britain, signed at
London, on 22nd December 1931 is not part of Statutes of
General Applications that “were in force in England on the 1st
day of January, 1900” and therefore has no force of law in
Nigeria.
Having expressly mentioned statutes which “were in force in
England on the 1st day of January, 1900”, the Interpretation
Act, has expressly excluded every other statutes which came into
force in England “after the 1st day of January, 1900”.
Extradition Treaty between the United States of America and
Great Britain, signed at London, on 22nd December 1931
having come into force in England after the 1st day of January,
1900”, it is not to be applied as part of statutes of
general application and falls outside the scope and contemplation
of Section 32 of the Interpretation Act, a provision which the
Supreme Court, described as a “nebulous provision”, Bernard
Chigbu v Tonimas Nigeria Ltd & Another [2006] 4 SCNJ 262,
per Tobi, J.S.C. [of blessed memory].
In any event, assuming, without conceding, that the Extradition
Treaty between the United States of America and Great Britain,
signed at London, on 22nd December 1931 is one of the statutes of
general application, we vociferously argue that it cannot still
apply to Nigeria being that it came into force at a time when
Nigeria was still a British Colony but now the Nigerian nation
enjoys untrammeled sovereignty by which it enthroned its own
constitution particularly Section 12 of the amended 1999
Constitution that now governs how treaties are to be
incorporated into Nigerian laws if ever they will be valid. This
was the view ably expressed by this Court in Nze Bernard
Chigbu v Tonimas Nigeria Ltd & Another [2006] 4 SCNJ 262.
This is what Their Lordships of our Apex Court said:
Much as I appreciate the colonial tie between
England and Nigeria, it will seriously hamper and compromise our
sovereignty if we continue to go on a borrowing
‘spree’, if I may so unguardedly call it, to England
for the laws of that country without any justifiable reason.
Nigeria is Nigeria and England is England. Statutes of England cannot apply to Nigeria as a matter of
course, even the
so-called statutes of general application [Emphasis
supplied by the writer]
END:
This write-up tackled as the object of its enquiry the
misconception that there is a valid and subsisting Extradition
Treaty between Nigeria and the United States of America. The true
position of the law is that as it stands today, there is none. Sad
as it may appear, it is a strong position which if well advanced
before the courts, ABBA KYARI, will not removed from Nigeria to the
United States of America in the event the Honourable
Attorney-General of the Federation decides to apply to the Federal
High Court for his removal.
In signing off, I strongly note that this piece contributed is
by no means an expression of support for the embattled cop, DCP
Abba Kyari. The mountainous allegations for which the United States
Court wishes to try him are seemingly overwhelming. Their insipid
content and nature are such that anyone who means well for the
image and health of Nigeria’s security architecture should be
deeply worried. This is quite apart from other truckloads of
allegations levied against the same cop in some quarters bordering
on rape, abuse of official powers, and grave destruction of
fundamental human rights, large-scale extra-judicial killings
which the now defunct Special Anti-Robbery Squad
[SARS], once under his supervision, egregiously
perpetrated against numerous Nigerians which have left innumerable
families in grave sorrow, eternal agony, excruciating anguish,
wrapped in irreversible consequences! All these are rather too many
for one proclaimed to be a cop, and here, we are talking of a
supposed ‘super cop’. That this litany of lurid,
horrific and ghoulish allegations is swarming all around DCP Abba
Kyari raises a huge integrity question mark on the policing system
that we have, perhaps, a wake-up call for urgent fundamental
reforms. The time for such radical overhaul is now. I choose to
stop here.
This Writer could be reached on: 08131131942 OR
joannesmaria2009@yahoo.com
BY JOHNMARY CHUKWUKASI JIDEOBI,
Esq.
INTRODUCTION:
One of the most popular quotes credited to Friedrich
Wilhelm Nietzsche a [German philosopher, whose work has
exerted a profound influence on intellectual history] is that
“He who fights with monsters should look to it that he himself
does not become a monster . . . when you gaze long into the abyss
the abyss also gazes into you”. The Latin phrase,
“Quis custodiet ipsos custodies”, originated from
the Satires of Juvenal, [the
1st–2nd century Roman satirist]. It is literally translated as
“Who will guard the guards themselves?” These two
nuggets plucked from the works of Friedrich
Nietzsche and Juvenal, very aptly, in
their aggregate, describes the mood of the Nigerian nation since
the warrant of arrest issued against ABBA ALHAJI KYARI, by the
United States Court, became a public knowledge.
FACTUAL BACKGROUND:
On the 12th day of February, 2021,
the United States of America filed a Criminal Complaint before the
United Stated District Court for the Central District of California
in Case No. 2:21-mj-00760-DUTY against six (6)
named Defendants of Nigerian origin. Of the six Defendants, the
name of the 4th Defendant, ABBA ALHAJI KYARI has raised
enormous dusts yet to settle within the firmament of Nigeria for
reasons that are all too obvious. The reason is because of the
personality of the 4th Defendant that seems to loom
large within the Nigerian law enforcement circle particularly the
Nigerian Police Force where he currently ranks as a Deputy
Commissioner of Police. Who then is ABBA ALHAJI KYARI? At
paragraphs 28 and 29 of the Affidavit in support
of the Criminal Complaint filed against him before the US District
Court, the Deponent, ANDREW JOHN INNOCENTI, who
described himself as “a Special Agent with the Federal Bureau
of Investigation (“FBI”) and have been so employed since
approximately March, 2015”, has this to say about the
personality of ABBA ALHAJI KYARI:
28: I reviewed online articles about KYARI, which indicated
that KYARI is an Inspector General of the Police’s Intelligence
Response Team and a Deputy Commissioner of Police in Nigeria. KYARI
previously managed the Special Anti- Robbery Squad, commonly known
as SARS, as the Officer-In-Charge for several years. Articles
referred to KYARI as a “super cop” of the Nigeria Police Force, and
described him as “The Most Decorated Officer In The History Of The
Nigerian Police.” KYARI has been awarded many accolades, including
recognition for his performance by the Nigerian House of
Representatives in June 2020, which KYARI informed ABBAS of via the
news article discussed above. I also reviewed other articles, from
October and November 2020, which indicated that KYARI had been
accused of falsely arresting and extorting a businessman in Lagos.
Based on those articles, KYARI’s work, in general, appears to have
related primarily to kidnapping cases, and I did not see any
articles suggesting that KYARI worked on fraud cases.
- Finally, I have reviewed a certified NIV application
submitted by ABBA ALHAJI KYARI, in April 2019. This application
included one of the aforementioned phone numbers (09099999131) that
KYARI used to communicate with ABBAS, as well as a date of birth in
March of 1975, and KYARI’s Nigerian passport number ending in 3677.
The NIV application also included the following photograph, which
is consistent with the other photographs of KYARI shown
above:
In his article titled: “ABBA KYARI AND THE MAGGOTS IN
HUSH PUPPIES’ PHONE” Dr. Ugoji Egbujo
described Abba Kyari as “an enigma. A detective who craves
the limelight.”
Suffice it to add that the charges piled up against ABBA KYARI
and other Defendants border largely on internet fraud running into
Hundreds of Thousands of United States Dollars.
OBJECT OF THIS WRITE-UP:
The focal objective of this write-up is to examine the position
of the law as to whether the Extradition Treaty which the United
States of America is banking on as the legal basis for seeking ABBA
KYARI’S extradition is one cognizable under the extant Nigerian
Law. The Treaty under consideration here is the Extradition
Treaty between the United States of America and Great Britain,
signed at London, on 22nd December 1931. This article
contends, vociferously, that the application of Extradition
Treaty between the United States of America and Great Britain,
signed at London, on 22nd December 1931 in extraditing
ABBA KYARI will do violence to the impregnably inviolable
Section 12(1), (2) & (3) of the amended 1999 Constitution
of the Federal Republic of Nigeria. Coterminous with the
foregoing, the Federal High Court and indeed every other Court in
the land is drained of the requisite jurisdiction to enforce
unincorporated treaties, like the Treaty under consideration, just
as the Honourable Attorney-General of the Federation [and indeed
all Agencies of Government] are without the locus standi
to activate or seek to enforce unincorporated treaties whose
application in Nigeria are clearly forbidden by the Constitution,
the organic law.
THE KERNEL:
To get our bearings right, we shall proceed to pluck out from
the Statute book the provision of Section 12(1), (2) & (3)
of the amended 1999 Constitution couched in this
unmistakable language:
(1) No treaty between the Federation and any other country
shall have the force law except to the extent to which any such
treaty has been enacted into law by the National
Assembly.
(2) The National Assembly may make laws for the Federation
or any part thererof with respect to matters not included in the
Exclusive Legislative List for the purpose of implementing a
treaty.
(3) A Bill for an Act of the National Assembly passed
pursuant to the provisions of sub-section (2) of this section shall
not be presented to the President for assent, and shall not be
enacted unless it is ratified by a majority of all the Houses of
Assembly in the Federation.
There is no doubt that under international law, treaties are
seen as contracts between states and if they do not receive the
consent of the various states, their provisions will not be binding
upon them. The fundamental principle of treaty law is undoubtedly
the proposition that treaties are binding upon the parties to them
and must be performed in good faith. Under Article 11 of
the 1969 Vienna Convention on the Law of Treaties, it is
now firmly settled that among other ways, a state may signal its
consent to international agreements by signature, exchange of
instrument constituting a treaty, ratification, acceptance,
approval or accession. All students of international law would
recall the never-ending battle between domestic and foreign courts.
Thus, the place/fate of foreign laws/treaties before domestic
courts vis-a- vis the place/fate of municipal laws before foreign
courts have remained an enduring debate in the field of
International law world over. While foreign courts/international
tribunals have consistently held that municipal laws are amenable
to foreign laws/treaties, the municipal courts of many nations have
taken the opposite direction in consistently holding that foreign
laws/treaties are amenable to domestic laws. In this regard, while
interpreting Article 46(1) of the 1969 Vienna Convention on
the Law of Treaties, the International Court of
Justice held in the case of Cameroon V. Nigeria (Judgment)
(2002) that a state cannot plead a breach of its
constitutional provision as to the making of treaties as a valid
excuse for condemning an agreement and resiling therefrom.
In contradistinction to the above position held by foreign
courts, the House of Lords in England has come to the settled
conclusion that “except to the extent that a treaty
becomes incorporated into the laws of the United Kingdom by
statute, the courts of the United Kingdom have no power to enforce
treaty rights and obligations at the behest of a sovereign
government or at the behest of a private individual”
and further reaffirmed in the very recent case of A (FC)
and Others (FC) v. Secretary of State for the Home Department
(2005) UKHL 71 where it was held that “a
treaty, even if ratified by the United Kingdom, has no binding
force in the domestic law of this country unless it is given effect
by statute or expresses principles of international
law”. The position is no different in the United
States of America. The question of a possible conflict between
treaty obligations and domestic legislation was raised in
Diggs v. Schultz 470 F. 2d 461, where the Supreme
Court of the United States came to the conclusion that
“under our constitutional scheme, Congress can denounce
treaties if it see fit to do so, and there is nothing the other
branches of government can do about it”. In Nigeria,
the position is no different as our own Supreme Court has had the
opportunity to show the Nigerian position. When called upon to
interpret and apply Section 12 of the 1979
Constitution, which is identically worded with and a
replica of Section 12 of the amended 1999
Constitution, the Nigerian Supreme Court in Abacha
v Fawehinmi [2000] 6 NWLR Part 660 at page 340 [through
Ogundare, J.S.C. who wrote the leading judgment] magisterially
intoned thusly:
Before its enactment into law by National Assembly,
an international treaty has no such force of law as to make its
provisions justiciable in our courts. See the recent decision of
the Privy Council in Higgs & Anor. V.
Minister of National Security & Ors. The
Times of December 23, 1999 where it was held
that-
“In the law of England and the Bahamas, the right to
enter into treaties was one of the surviving prerogative powers of
the Crown. Treaties formed no part of domestic law unless enacted
by the legislature. Domestic Courts had no
jurisdiction to construe or apply a treaty, nor could
unincorporated treaties change the law of the land. They had
no effect upon citizen’ right and duties
in common or statute law…”
In my respectful view, I think the above passage
represents the correct position of the law, not only in England,
but in Nigeria as well. [italics and
underlining supplied by us for emphasis].
In the same report, Per Iguh, J.S.C. with authoritative finality
intoned thusly:
“…unincorporated treaties cannot change any aspect
of Nigerian Law, even though Nigeria is a party to those treaties.
Indeed, unincorporated treaties have no effect upon the rights and
duties of citizens either at common law or statute law… By the
time-honored doctrine of precedent as it operates in Nigeria and
all common law countries, the decision on a given issue of law
handed down by the apex court, which for us in Nigeria is the
Supreme Court, is not only superior but binds all subordinate
courts, including all courts exercising appellate jurisdiction…
Consequently, it is an exception rather than the rule for a state
party to a treaty to contract out and defeat the legitimate
operation of a treaty to which it is a signatory by derogating from
the treaty through passing a municipal law inconsistent with the
treaty. Since a state at any moment despite the provisions of a
treaty that it is a signatory to, is at liberty to withdraw its
involvement in the treaty, it follows that a state’s treaty
obligations can be neutralized by enacting a new legislation
inconsistent with those obligations. But this is without prejudice
to any remedies available against the recalcitrant slate in
international law at the instance of the other states parties to
the treaty. In variably, this is a political decision involving
such sanctions that the other states signatory to the treaty may
deem fit to impose, See AH. Robertson
Human Rights in National and international
Law, (1968 Ed.) p. 12, Ian
Brownlie, Principles of’ Public
international Law (4th Ed.) J.G.
Starke, introduction to international
Law, 9th Ed, pp. 413 – 415,
and Macurthys Ltc!. v.
Smith (1979) 3 All E, R. 325 at 329 pg
22.”
In his own effulgent contribution, EJIWUNMI, J.S.C, in casting
his lot with the Leading Judgment, adroitly ventilated the seasoned
view in sync with the Leading Judgment. This is what His Lordship
said:
It is therefore manifest that no
matter how beneficial to the country or the citizenry an
international treaty to which Nigeria has become a signatory may
be, it remains unenforceable, if it is not enacted into the
Jaw of the country by the National Assembly. This position is
generally in accord with the practice in other countries. In the
recent case of Higgs & aI/or. v. Minister of National Security &
Ors….If such a treaty is not incorporated into the
municipal law, our domestic courts would have no jurisdiction to
construe or apply it. Its provisions cannot therefore have
any effect upon citizens’ right and duties.
The law is abecedarian to the effect that a trial without
jurisdiction is a nullity and that where a court takes upon itself
to exercise power under jurisdiction which it does not possess; its
decision is tantamount to nothing. It has been stated that
jurisdiction is the very basis on which any court tries a case as
it is the life of all trials. This is because a trial without
jurisdiction is a nullity, Garba v. Sheba Int. (Nig.)
Ltd. (2002) 1 N.W.L.R. (Pt. 748) 372 @ 388-389, per Muhammed,
J.C.A. In ventilation of this trite view, the Supreme
Court, per KARIBI-WHYTE, J.S.C, in MATARI & ORS V
DANGALADIMA & ANOR (1993) 3 NWLR (PT 281) 266
authoritatively pronounced thusly:
The issue of jurisdiction is without doubt,
fundamental and decisive of the question of adjudication. It is
well settled that the decision of any Court reached without
jurisdiction is void ab initio and the decision is of no effect,
see U.A.C. Limited v. Macfoy (1961) 3 All ER
1169.”
The argument, in some quarters, that the Extradition
Treaty between the United States of America and Great Britain,
signed at London, on 22nd December 1931 is part
of Statutes of General Applications is inherently false. This why;
Section 32(1) and (2) of Interpretation Act provides for the
grafting of statutes of general application into Nigerian laws. We
shall pluck it out from the statute book and reproduce it ipsissima
verba thusly:
(1) Subject to the provisions of this section and except in
so far as other provision is made by any Federal law, the common
law of England and the doctrines of equity, together with the
statutes of general application that were in force in England on
the 1st day of January, 1900, shall, in so far as they relate to
any matter within the legislative competence of the Federal
legislature, be in force in Nigeria.
(2)Such Imperial laws shall be in force so far only as the
limits of the local jurisdiction and local circumstances shall
permit and subject to any Federal law.
Implicit in the above provision is that it is only those
statutes of general application that “were in force in
England on the 1st day of January, 1900, shall” be in
force in Nigeria and NOT those AFTER 1st January, 1900.
Express mention of one thing is the express exclusion of the other.
In AG. ONDO V. AG. EKITI STATE (2001)
LPELR-622(SC), the Supreme Court explained this principle
of interpretation well. This is what ThierLordships taught:
“… This is in accord with the accepted principle of
interpretation expressed in the Latin maxim expressio unius est
exclusio alterius or expressum facit cessare taciturn. The two
related principles mean firstly that “to state a thing expressly
ends the possibility that something inconsistent with it is
implied.” Secondly “to express one thing is impliedly to exclude
another” which is an aspect of the latter. This principle of,
construction is applied where a statutory proposition might have
covered a number of matters but in fact mentions only some of them.
Unless those mentioned are mentioned only as examples, or ex
abundanti cautela, or for some other sufficient reason, the rest
are taken to be excluded from the
proposition.”
In BUHARI & ANOR V. YUSUF & ANOR (2003) LPELR-812
(SC) Their Lordships of the Apex Court gave a path-marking
insight into this interpretational canon thusly:
“The principle is well settled that in the
construction of statutory provisions, where a statute mentions
specific things or persons, the intention is that those not
mentioned are not intended to be included. This is the expressio
unius est exclusio alterius rule, meaning that the express mention
of one thing in a statutory provision automatically excludes any
other which otherwise would have been included by implication. see
Ogbunyiya v. Okudo (1976) 6-9 SC 32; Udoh v. Orthopaedic Hospital
Management Board (1993) 7 NWLR (Pt. 304)
139.”
The lines which Their Lordships have drawn in the above cases
lead us to safely surmise that the Extradition Treaty
between the United States of America and Great Britain, signed at
London, on 22nd December 1931 is not part of Statutes of
General Applications that “were in force in England on the 1st
day of January, 1900” and therefore has no force of law in
Nigeria.
Having expressly mentioned statutes which “were in force in
England on the 1st day of January, 1900”, the Interpretation
Act, has expressly excluded every other statutes which came into
force in England “after the 1st day of January, 1900”.
Extradition Treaty between the United States of America and
Great Britain, signed at London, on 22nd December 1931
having come into force in England after the 1st day of January,
1900”, it is not to be applied as part of statutes of
general application and falls outside the scope and contemplation
of Section 32 of the Interpretation Act, a provision which the
Supreme Court, described as a “nebulous provision”, Bernard
Chigbu v Tonimas Nigeria Ltd & Another [2006] 4 SCNJ 262,
per Tobi, J.S.C. [of blessed memory].
In any event, assuming, without conceding, that the Extradition
Treaty between the United States of America and Great Britain,
signed at London, on 22nd December 1931 is one of the statutes of
general application, we vociferously argue that it cannot still
apply to Nigeria being that it came into force at a time when
Nigeria was still a British Colony but now the Nigerian nation
enjoys untrammeled sovereignty by which it enthroned its own
constitution particularly Section 12 of the amended 1999
Constitution that now governs how treaties are to be
incorporated into Nigerian laws if ever they will be valid. This
was the view ably expressed by this Court in Nze Bernard
Chigbu v Tonimas Nigeria Ltd & Another [2006] 4 SCNJ 262.
This is what Their Lordships of our Apex Court said:
Much as I appreciate the colonial tie between
England and Nigeria, it will seriously hamper and compromise our
sovereignty if we continue to go on a borrowing
‘spree’, if I may so unguardedly call it, to England
for the laws of that country without any justifiable reason.
Nigeria is Nigeria and England is England. Statutes of England cannot apply to Nigeria as a matter of
course, even the
so-called statutes of general application [Emphasis
supplied by the writer]
END:
This write-up tackled as the object of its enquiry the
misconception that there is a valid and subsisting Extradition
Treaty between Nigeria and the United States of America. The true
position of the law is that as it stands today, there is none. Sad
as it may appear, it is a strong position which if well advanced
before the courts, ABBA KYARI, will not removed from Nigeria to the
United States of America in the event the Honourable
Attorney-General of the Federation decides to apply to the Federal
High Court for his removal.
In signing off, I strongly note that this piece contributed is
by no means an expression of support for the embattled cop, DCP
Abba Kyari. The mountainous allegations for which the United States
Court wishes to try him are seemingly overwhelming. Their insipid
content and nature are such that anyone who means well for the
image and health of Nigeria’s security architecture should be
deeply worried. This is quite apart from other truckloads of
allegations levied against the same cop in some quarters bordering
on rape, abuse of official powers, and grave destruction of
fundamental human rights, large-scale extra-judicial killings
which the now defunct Special Anti-Robbery Squad
[SARS], once under his supervision, egregiously
perpetrated against numerous Nigerians which have left innumerable
families in grave sorrow, eternal agony, excruciating anguish,
wrapped in irreversible consequences! All these are rather too many
for one proclaimed to be a cop, and here, we are talking of a
supposed ‘super cop’. That this litany of lurid,
horrific and ghoulish allegations is swarming all around DCP Abba
Kyari raises a huge integrity question mark on the policing system
that we have, perhaps, a wake-up call for urgent fundamental
reforms. The time for such radical overhaul is now. I choose to
stop here.
This Writer could be reached on: 08131131942 OR
joannesmaria2009@yahoo.com