COURT OF APPEAL, ACCRA (FULL BENCH)
Date: 10 DECEMBER 1974
AMISSAH JA
CASES REFERRED TO
(1) A/S Norway Cement Export Ltd. v. Addison [1974] 2 G.L.R. 177, C.A. (full bench).
(2) Government of Sierra Leone v. Jumu, High Court, Accra, 28 November 1968, unreported; digested in (1969) C.C. 34.
(3) Armah v. Government of Ghana [1968] AC. 192; [1966] 3 W.L.R. 828; [1966] 3 All E.R. 177; 131 J.P. 43; 110 S.J. 890, H.L.
NATURE OF PROCEEDINGS
APPLICATION for a review of a decision of the ordinary bench of the Court of Appeal, dismissing an appeal against a refusal by the High Court for a grant of habeas corpus.
COUNSEL
Willie Amarfio for the applicants.
K. Gyeke-Dako, Director of Public Prosecutions (with him S. E. Asamoah, Senior State Attorney), for the respondent.
JUDGMENT OF AMISSAH JA
Amissah J.A. delivered the judgment of the court. On 12 July 1974, the ordinary bench of this court gave its reasons for dismissing the appeal of the present applicants, Addoquaye Allotey and his wife Enid, in their fight to avoid extradition to stand trial in the United States. Both the judgment and the reasons for it were unanimous. Before these reasons were given, the applicants thought their counsel filed a motion for review stating as their ground for dissatisfaction that a miscarriage of justice had been occasioned by the decision of the ordinary bench. The basis for this claim was not then stated. No further light was thrown on the matter even after the reasons of the court for its decision had been given. Rather an application was filed praying the court for an injunction against the surrender of the applicants before their application for a review had been disposed of by the full bench. On 22 July, notice was given by the registrar of the hearing of both the motion for injunction and the substantive review application which was set for 30 July. At this stage the ground for objection to the ordinary bench decision was still the single unexplained allegation of miscarriage of justice. Late in the morning of 29 July, that is, the day before the scheduled hearing of the case, counsel for the applicants filed his supplementary statement of the reasons for the application for
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review. The statement consisted of no less than nineteen itemised objections. Members of the court did not see these reasons before the morning when counsel hoped to argue them. And we doubt whether opposing counsel had much if any earlier notice of them. We nevertheless agreed to hear counsel fully on this application.
As we decided to proceed with the substantive application we found it unnecessary to deal with the motion for injunction. One fact clearly demonstrated by the supplementary statement of the reasons for this application is that the applicants conceived of the functions of the full bench in a review of a decision of the ordinary bench of the Court of Appeal as equivalent to an appeal. The application seeks to re-argue all the points raised against the decision of the High Court and turned down by the ordinary bench as if the full bench is a fresh and superior court before which the misdeeds of an inferior court are being laid. But to treat a review entertained by the full bench as an appeal from the ordinary bench of this court is a mistake. That the two procedures are different was recently pointed out by the full bench of the Court of Appeal in A/S Norway Cement Export Ltd. v. Addison [1974] 2 G.L.R. 177. In a unanimous ruling delivered by Apaloo J.A., the court held at p. 182 that:
“The jurisdiction conferred on the full bench is to review and not to entertain an appeal from the ordinary bench. Indeed an appeal from the ordinary bench to the full bench would only, in effect, mean an appeal from one panel of judges to another panel of the same court. Accordingly, a considerable body of case law has drawn a distinction between a review and an appeal and stressed that the former should not be taken as intending the latter and should not be dealt with as such.”
The case law on the point is cited in that ruling and need not be repeated here.
The facts of this case have been told often enough in our courts. In brief, the case is one of a request for the extradition of the applicants, Addoquaye Allotey, a Ghanaian citizen, and his wife Enid, an American citizen of Barbadian extraction, by the Government of the United States of America to stand trial on charges of fraud. The applicants are alleged to have defrauded the Republic of Equatorial Guinea through spurious business dealings in cocoa. The amount of money involved is large. Each of the two counts in the warrant of arrest issued in Ghana in support of the request by the United States alleges fraud by false pretences to the tune of $1,112,500.00. The proceedings for extradition came before the circuit court and his honour Judge Andoh (as he then was) found, after a detailed examination of the matter, that a sufficient case had been established to warrant the extradition of the applicants to stand trial in the United States. He therefore committed them to prison to await their return. An application for habeas corpus was duly brought before the High Court. This was refused by Apaloo Ag.C.J. then sitting in that court. From that refusal an appeal was lodged with this court. It is the dismissal of this appeal by the ordinary bench which has led to the present application for a review.
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Not all the nineteen reasons filed in support of the application were argued. And of those argued, a number were taken together. The first point raised was that the ordinary bench failed, as indeed did the circuit court judge who first dealt with the case, and Apaloo Ag. C.J. who sat on the subsequent habeas corpus proceedings, to hold from an examination of the evidence that the applicants, if surrendered to the United States Government, would be prosecuted for offences other than those for which the extradition was sought. It was argued that the real object of the request was to prosecute or punish the applicants on account of their race and political opinions. Learned counsel submitted in this regard that there was no arrangement between the United States and Ghana which precluded the former from proceeding against a returned fugitive for offences other than those for which his extradition was sought. But this submission was clearly founded on a misreading of the treaty which governs extradition between the two states. That treaty was entered into by the United States and Great Britain on 22 December 1931. Ghana, then the Gold Coast, formed part of the British dominions to which the treaty applied. The basis of the present request is that this was one of the treaties which Ghana succeeded to on becoming independent. There was no dispute about the application of the treaty to Ghana which is accepted as governing the situation. Article 7 of that treaty provides that:
“A person surrendered can in no case be kept in custody or be brought to trial in the territories of the High Contracting Party to whom the surrender has been made for any other crime or offence, or on account of any other matters, than those for which the extradition shall have taken place, until he had been restored, or has had an opportunity of returning, to the territories of the High Contracting Party by whom he has been surrendered…”
The only exception to this stipulation is as to crimes or offences committed after the extradition. The article puts the United States under an obligation not to proceed against the applicants for any offences other than the ones for which their extradition was sought from Ghana until they had been restored to Ghana or have had an opportunity of returning to Ghana. Mala fides is not to be lightly attributed to a friendly state. It involves an imputation on the honour of the state which can be made only in clear and compelling cases. In our own country such an issue was successfully raised in Government of Sierra Leone v. Jumu, High Court, Accra, 28 November 1968, unreported; digested in (1969) C.C. 34: see also Gyandoh and Griffiths, A Sourcebook of the Constitutional Law of Ghana, Vol. 2 (Part 2) at p. 391, where Major Jumu, a member of the former Sierra Leone military government, was able to satisfy the High Court that the real charges he was likely to face if surrendered to the civilian government that had then taken over the reins of government there were of treason and not the false imprisonment for which his surrender was sought. What has to be weighed when mala fides is charged in these cases, is the possible breach of a treaty obligation by the requesting state leading to the most serious diplomatic consequences against the advantage to that state of
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getting the particular fugitive imprisoned at all costs. Although allegations were made about the real object of the request, the subject of the application before us brought by the United States, no case was made in support of the intention of that country to break this solemn treaty obligation. As to the contention that the purpose of the request is to prosecute or punish the applicants on account of their race or political opinions, like the other courts in which it was equally strenuously urged, we find it totally hollow and unconvincing. It is not the first time that it has been pointed out that the complainant in the case is an African state, the Republic of Equatorial Guinea. And apart from the obvious colour of the applicants nothing else which should mark them out as the objects of persecution or oppression by any government was put before us.
Various points were then raised by counsel, all directed to showing either that the learned circuit judge was wrong in the standard of proof applied to the case or in his finding that the facts warranted the surrender of the applicants to stand their trial. On these points support was drawn from the British House of Lords’ decision in Armah v. Government of Ghana [1966] 3 All E.R. 177, H.L. where their Lordships by a majority of three to two held it to be the duty of the magistrate, who made the finding that there was a case to warrant the surrender of a fugitive to answer, to weigh the whole evidence before him and to decide whether he himself thought that it raised a strong and probable presumption that the alleged offender had committed the offence. It was not sufficient, according to their Lordships, for this purpose, that the magistrate should have formed the view that a reasonable jury might convict at a subsequent trial, though he himself was not satisfied that a strong and probable presumption of guilt was shown. Put shortly in the words of Lord Reid at p. 184:
“The magistrate must weigh the whole evidence put before him and decide whether he-not a hypothetical jury-thinks it probable that the accused committed the offence, and probable does not mean certain or nearly certain, and on the other hand it does not mean a mere possibility.”
The kernel of the argument founded on this test was in the first place that a strong or probable presumption of guilt was the proper test to apply in these extradition cases and, secondly, that the judgment of the circuit judge indicated such doubts on some points and oversight of other material facts that properly applied he could not have been satisfied that this test had been met. On this. it is sufficient to say that the “strong and probable presumption of guilt” test is not the proper test to apply under the extradition laws of this country. It is true that Judge Andoh in dealing with this matter appears to have applied that test. His statement of the law however, at least, gives some cause for the objection that although claiming to apply that test, he had indeed equated it with the lower test which merely required him to commit if a hypothetical reasonable jury could convict, and therefore he had subconsciously relaxed the test Which he actually applied to the case before him. In completing his review of the evidence, the learned judge made this pronouncement:
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“At this stage, what this court is called upon to do is to determine whether there is a strong or probable prima facie case of fraud made by the United States of America against the defendants as to warrant their committal to be tried in New York, United States … I have no doubt having regard to the evidence adduced on behalf of the parties that the evidence as a whole, raises a strong and probable presumption that the fugitive criminals mentioned in the warrants of arrest committed the offences therein disclosed. A magistrate must have before him such evidence which if it remains uncontradicted at the trial, a reasonable minded jury could convict upon it. If it is contradicted at the trial and the jury believes all contradictions, they will not convict. This court is not trying the defendants but it is only determining whether there is such a case or sufficient case that the defendants ought to be sent to stand their trial before a jury or some other tribunal in the place where the allegations are made against them.
The latter part of this statement may lend support to the view that the judge really took the view that the cogency of the evidence was entirely a matter for the trial jury. And in so far as this meant an abandonment of his duty to satisfy himself that the evidence as he himself saw it, raised a strong or probable presumption of the applicants’ guilt, he seems to have fallen short of the demands of the British House of Lords in the Armah case (supra). But looking at the judge’s statement as a whole we are satisfied that though references were made by him to the jury, he saw it as his duty to commit only if the evidence before him raised a strong and probable presumption of the applicants’ guilt. It must be remembered that apart from the evidence of the female applicant, all that the learned judge had to go by were documents. The limitations and difficulties imposed on a tribunal which has to make a decision as to the cogency of documentary evidence which is not undisputed are well known. The problems involved may have caused the learned judge to make the references to the jury that he did in this case.
Like Judge Andoh, Apaloo AG. C.J. also thought that the evidence disclosed a strong and probable presumption of guilt of the offence of fraud by false pretences and he rejected counsel’s argument to the contrary. He may not have seen this as the necessary test. His observation may rely have been an endorsement of the circuit judge’s finding on the strength of the case whatever be the test applied. But the argument urged upon us by counsel was that the “strong and probable presumption of guilt” test was the proper test to apply in Ghana and that in spite of the concurrent findings of the circuit court and the High Court, it was not satisfied. As indicated earlier, reliance was placed on the Armah case. That case depended entirely on the controlling British legislation. The extradition from Britain of Kwesi Armah, a Minister in the Nkrumah government, was sought by the Ghana Government, under the Fugitive Offenders Act, 1881 (44 & 45 Vict., c. 69). That was the Act which then applied to the extradition of a person from Britain at the request of
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another Commonwealth country. For extraditions at the request of non-Commonwealth countries the Extradition Act, 1870 (33 & 34 Vict., c. 52), was and still is the appropriate statute. Ghana being a Commonwealth country had to proceed under the Fugitive Offenders Act, 1881. Section 5 of that Act provided that:
“A fugitive when apprehended shall be brought before a magistrate, who (subject to the provisions of this Act) shall hear the case in the same manner and have the same jurisdiction and powers, as near as may be (including the power to remand and admit to bail), as if the fugitive were charged with an offence committed within his jurisdiction.
If the endorsed warrant for the apprehension of the fugitive is duly authenticated, and such evidence is produced as (subject to the provisions of this Act) according to the law ordinarily administered by the magistrate, raises a strong or probable presumption that the fugitive committed the offence mentioned in the warrant, and that the offence is one to which this part of the Act applies, the magistrate shall commit the fugitive to prison to await his return, . . .”
This was the provision which laid down the “strong or probable presumption of guilt” test. It was not the first time that such language had been used in British legislation. It was used in the Criminal Law Act, 1826 (7 Geo. 4, c. 64), which in the words of Lord Pearson at pp. 197-198, referred to three different degrees of cogency of evidence, namely, (i) positive or credible evidence of the fact; (ii) such evidence as, if not explained or contradicted, shall in the opinion of the justices raise a strong presumption of the guilt of the accused; and (iii) no strong presumption of guilt but sufficient ground for judicial inquiry into his or her guilt. Subsequently legislation in pari materia used language applying the second or third standard, the first disappearing probably because it was covered by the second. Thus the relevant section of the Extradition Act, 1870, what may for convenience be described as the non-Commonwealth Act, and the first of the two Acts passed in the latter nineteenth century by the British legislature to deal with the surrender of fugitive criminals from Britain provided in section 10 that:
“In the case of a fugitive criminal accused of an extradition crime, if the foreign warrant authorising the arrest of such criminal is duly authenticated, and such evidence is produced as (subject to the provisions of this Act) would, according to the law of England, justify the committal for trial of the prisoner if the crime of which he is accused had been committed in England, the police magistrate commit him to prison, but otherwise shall order him to be discharged. .”
Here the test laid down was the third of the three found in the criminal Law Act, 1826. It will be noticed from the earlier quotation that when the Fugitive Offenders Act, 1881, came to be enacted, it was the words of the second test which were used. For a long time it was assumed that
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the tests laid down by the two statutes for extradition from Britain were the same. So that though the language of the Fugitive Offenders Act, 1881, requiring a strong or probable presumption of guilt was spoken by the judges in the cases, it was the standard of the Extradition Act, 1870, which found evidence justifying the committal of the prisoner for trial sufficient, which was actually applied. The House of Lords in the Armah case held this assumption to be unwarranted, and wrong. The language of the Fugitive Offenders Act 1881, said their Lordships, demanded a higher standard than that imposed by the Extradition Act, 1870. Reasons were given by Lord Reid why different tests could apply to extraditions to Commonwealth or non-Commonwealth countries. They need not detain us here. The main point made in the decision is that evidence which raises a strong or probable presumption of guilt is not the same as evidence which justifies the committal for trial by a jury. In the former case the committal magistrate must himself be satisfied of at least the probability of guilt of the prisoner, in the latter he need not be. But that is the extent of the Armah decision on this point. Bearing in mind that it was a case brought under the Fugitive Offenders Act, 1881 (the Commonwealth Act), it has to be remembered that it did not say that the proper test in all cases of extradition from Britain must be a finding of strong or probable presumption of guilt. Indeed the double standard that that decision revived in the treatment of extradition cases depending on whether the request emanated from a Commonwealth or non-Commonwealth country must have hastened the enactment by the British Parliament of the Fugitive Offenders Act, 1967 (15 & 16 Eliz. 2, c. 68), which corrected this anomaly. Section 7 (5) (a) of that Act brought the practice with regard to extraditions under it into line with extraditions under the Extradition Act, 1870, by providing that:
“Where an authority to proceed has been issued in respect of the person arrested and the court of committal is satisfied, after hearing any evidence tendered in support of the request for the return of that person or on behalf of that person, that the offence to which the authority relates is a relevant offence and is further satisfied –
(a) where that person is accused of the offence, that the evidence would be sufficient to warrant his trial for that offence if it had been committed within the jurisdiction of the court; the court shall, unless his committal is prohibited by any other provision of this Act, commit him to custody to await his return thereunder; . .”
Thus the standard thought desirable and now uniformly applied in Britain is the lower one which finds evidence to warrant the prisoner’s trial sufficient.
But even if the decision in Armah v. Government of Ghana (supra) had been that all extradition cases in Britain ought to be governed by the stricter test of “strong and probable presumption of guilt,” even if such a decision had not been disturbed by legislation passed by the British Parliament, how could that decision have affected matters in
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Ghana? Decisions of foreign courts, however eminent, do not bind the courts of this country. The highest value they hold depends on their persuasiveness. Besides the decision in the Armah case is based entirely on the wording of peculiar British legislation which no more applies in Ghana.
Since 1960 the legislation regulating extradition in this country has been our own Extradition Act, 1960 (Act 22).Section 10 (1) which provides a uniform test for all extradition proceedings Where the fugitive criminal is accused of a crime in any foreign country to which the Act applies, provides that:
“In the case of a fugitive criminal accused of an extradition crime, if the foreign warrant authorising the arrest of the criminal is duly authenticated, and such evidence. is produced as (subject to the provisions of this Act) would, according to the law of Ghana, justify the committal for trial of the prisoner if the crime of which he is accused had been committed in Ghana the District Magistrate shall commit him to prison.”
This is the material provision for the committal magistrate or judge to look to. It does not speak of strong or probable presumption of guilt. While in any case a finding that the evidence meets that standard would import the statement that the standard required by our legislation has been satisfied, and even exceeded, the use of the language holds the danger that it might create the misleading impression in the court, on counsel and on other interested parties, that that was really the standard called for. In our view, therefore, the use of the expression “strong and probable presumption of guilt” in extradition cases here is inadvisable and ought to be avoided.
Seen in this light, the persistent efforts by counsel to go through the evidence in detail with us to show contradictions or inaccurate findings of fact by the circuit judge must yield no fruit. We are not trying the case, just as the circuit judge was not. His duty was to decide as a magistrate seised with any indictable offence brought before him for committal to the High Court or a circuit court should. That duty is to ascertain whether there is evidence to justify the accused person being put on his trial. In this case the circuit judge dealt with the mass of evidence before him with meticulous care. He found that a strong and probable presumption of the applicants’ guilt had been made out on the evidence. In saying so he found the evidence stronger than the minimum needed. No less than four experienced judges sitting in the High Court and in this court have concurred in his assessment of the evidence. It would require unusual boldness to assert, and some startling disclosure to justify a court at this stage in saying that not only has the standard which all the previous judges have said has been reached not been attained, but that the evidence fell short of even some lower standard. We do not find any reason why the committal order should be disturbed. If the circuit judge erred at all the error was in favour of the applicants and it hardly lies in their mouth to complain about it.
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Finally the standing of the United States Government to make this request was challenged. The offence, if any offence was indeed disclosed, it was argued, was not committed within jurisdiction of the United States. Presumably it was committed in Equatorial Guinea and therefore only that government could have jurisdiction over the case. This submission can be disposed of more summarily. Section 10 (1) of the Extradition Act, 1960 (Act 22), obliges the magistrate to commit if “such evidence is produced as … would, according to the law of Ghana, justify the committal for trial of the prisoner, if the crime of which he is accused had been committed in Ghana…..” If the Ghanaian courts would have jurisdiction over such an act done in Ghana, the United States courts ought to have jurisdiction if the same act were done there. The alleged false representation was according to the prosecution made by the applicants when they were within United States jurisdiction. True it took effect on an institution within the jurisdiction of Equatorial Guinea. But had a similar representation been made from Ghana to take effect outside Ghana, the Ghanaian courts would have taken jurisdiction. Section 51 (2) of the Courts Act, 1971 (Act 372), provides on this that:
“When an act which if done wholly within the jurisdiction of the Court, would be a criminal offence, is done partly within and partly beyond the jurisdiction, every person who within or outside the jurisdiction does or abets any part of the act may be tried and punished as if the act had been done wholly within the jurisdiction.”
If the Ghanaian courts would take jurisdiction in such a hypothetical case, so would they, in the case before us, recognise the jurisdiction of the United States courts. The submission is without merit.
It is for these reasons that we dismissed the application for review on 30 July this year.
DECISION
Application dismissed.
S.Y.B.-B.
