A federal high court strikes out application to extradite Kashamu

Firstclass newsline learnt that a Federal High Court in Abuja on
Wednesday finally dismissed an application seeking an order to
extradite the Ogun-East senator in the National Assembly, Buruji
Kashamu, to the United States of America to face trial on alleged
illicit drugs–related offences.
The immediate past Attorney-General of the Federation and Minister of
Justice, Mr. Mohammed Adoke (SAN), had filed the application on May
28, 2015 upon a request by the U.S. asking the Nigerian government to
surrender Kashamu to be prosecuted on one count of drug-related charge
pending against him before the United States District Court for the
Northern Illinois, Eastern Division.
But Justice Gabriel Kolawole, in his ruling on Wednesday, held that he
lacked jurisdiction to entertain the suit while the judgment of the
Lagos Division of the Federal High Court, nullifying the extradition
application on May 27, 2015, and the same judgment affirmed by another
judge of the same Lagos division on June 23, had not been set aside by
any appellate court.
Justice Okon Abang of the Lagos Division of the Federal High Court had
on May 27, 2015, nullified the extradition proceedings which he said
were initiated in contravention of an earlier order of the court
delivered in 2013.
Abang's orders nullifying the extradition proceedings were affirmed by
Justice Ibrahim Buba of the same Lagos Division of the court in a
ruling delivered on June 23, 2015.
Justice Kolawole, however, expressed reservations about the judgments
delivered in Lagos, expressing concern on whether the judges could
validly nullify the proceedings before another judge of the same level
of jurisdiction.
Describing the verdicts from Lagos as wild, audacious and
breathtaking, he however held that it was the exclusive duty of the
Court of Appeal to determine whether they were rightly or wrongly
given.
"They (the orders made in Lagos) are no doubt, by my assessment, very
wide, perhaps wild orders with the greatest respect to their
Lordships, and they are seemingly audacious if not breathtaking,"
Justice Kolawole held.
But the judge held that the court orders in three different suits –
FHC/L/CS/49/2010, FHC/L/CS/508/2015 and FHC/L/CS/763/2015 – barring
any move by the AGF to initiate extradition proceedings against
Kashamu remained valid as long as they had not been set aside by any
appellate court.
Justice Kolawole added that the applicant failed to show that it had
appealed against any of the court's decisions.
"The applicant has not produced any material before me to show that
these orders have been appealed against and or have been set aside by
the appellate courts," he ruled.
Relying on precedent judgments of the Supreme Court, Justice Kolawole
held that he would be acting unconstitutionally if he further allowed
the applicant, the Attorney-General of the Federation, to continue to
violate the order of court.
Justice Kolawole held, "The said orders were not made against my court
but against the applicant and until it is set aside or reversed by the
appellate courts, this court will be acting unconstitutionally to aid
the applicant to persevere in its act of contempt to the said orders.
"The constitutional duty and obligation that this court has and must
exercise is to ensure that the process of this court is not abused and
the sanctity of its extant orders regardless of whatever issues is
preserved and protected."
The judge therefore declined to grant an application for warrant of
arrest against Kashamu as requested by the counsel representing the
AGF, Mr. Muslim Hassan, during the hearing of Kashamu's objection
against the application on June 25, 2015.
The judge said it would amount to assisting the applicant to flout
court orders if he issued the warrant of arrest against the
respondent.
He held, "Based on these orders, this court will be acting perhaps
unconstitutionally in aiding the applicant to flout and disobey extant
orders of court of competent jurisdiction by appending my signature to
the arrest warrant which the applicant has prepared and applied for on
the proceedings of 25th June 2015.
"In concluding, I am unable to exercise jurisdiction in accordance
with section 6, 7 and 8 of the Extradition Act to accede to the
application for warrant to effect the arrest of the respondent because
the orders of Abang and Buba J. (Justices) of the Federal High Court
sitting in the Lagos Judicial Division have not been appealed against
by the applicant or have they been set aside by any appellate court.
"Secondly, the application dated May 27, 2015 and filed on May 28,
2015 by the applicant was filed in contravention of the orders made by
Abang J (Justice) and in any case this suit has been nullified by the
certain orders made by Abang J on June 8, 2015.
"Based on the above analysis, having regard to the second orders made
by Abang J., the extradition proceedings were initiated in violation
of injunctive order granted by Abang J. on May 27, 2015.
"The extradition proceedings were initiated in flagrant disobedience
or an extant order of a court of competent jurisdiction.
"The suit is hereby dismissed."
The court reiterated that "the judgment of a court of competent
jurisdiction remains valid and binding unless and until it is set
aside by the lower court itself where it acted without jurisdiction.
Kashamu's counsel, Mr. Ajibola Oluyede, had on June 25, 2015, when the
case came up for the first time before Justice Kolawole, said in the
light of the pronouncements of the Lagos Divison of the court, the
only business that could be entertained that day was for the judge to
strike out the suit.
But the AGF's lawyer, Hassan, had opposed the prayer for striking out
the suit, arguing that the judgment by Justice Abang was
"overreaching" since the suit he nullified was not before him.
The then AGF stated in the application, FHC/ABJ/CS/479/2015, that
Kashamu, who is described by the US government as being also known as
Alhaji and Kashmal, was a subject of a one count Second Superseding
Indictment in criminal case No 94 CR 172 filed before the Illinois
court on May 21, 1998.
An affidavit deposed to by the Assistant US Attorney for the Northern
District of Illinois, Diane MacArthur, attached to the extradition
request from the US government, was said to be dated April 27, 2015.
By the US government's charge against him, Kashamu allegedly conspired
with others to intentionally import "and did import" into the United
States" quantities of mixtures containing heroin between 1992 and
1995.
The offence for which Kashamu is allegedly wanted in the US is said to
contravene Section 952(a) of Title 21, United States Code, and
punishable under section 960 of the same law.
The penalty for the offence on conviction under the law, according to
the charge, is an imprisonment of not more than 10 years or a fine of
up to $10m in the case of an individual, or both.
Meanwhile, Hassan has said that the FG will appeal Justice Kolawole's
judgment before the end of this week.
Confirming the FG's position to our correspondent in a telephone
interview, Hassan said, "We are going to appeal against the judgment
as soon as we get the Certified True Copy of the judgment. We have
already applied for the CTC of the judgment and hopefully we should be
able to file our appeal before the end of the week."
Firstclassnewsline.net