GOVERNMENT OF SIERRA LEONE v. JUMU [1968] GLR 1058

DIVISION: HIGH COURT, ACCRA

DATE: 28 NOVEMBER 1968

BEFORE: KINGSLEY-NYINAH J.

NATURE OF PROCEEDINGS

APPLICATION for leave to appeal against the ruling of a district magistrate in extradition proceedings. The facts are fully stated in the ruling.

COUNSEL

E.N. Moore for the applicant (Government of Sierra Leone).

C.K. Zwennes for the respondent.

JUDGMENT OF KINGSLEY-NYINAH J.

This is an application for leave to appeal against the ruling of his worship J.F.S. Hansen, Esquire, delivered in these extradition proceedings on Thursday, 5 September 1968. In that ruling, the learned magistrate decided against the surrender unto the Government of Sierra Leone of Major Sandi Boakarie Jumu, referred to in the proceedings as the fugitive. The burden of his decision was that since the acts of the respondent herein were of a [p.1060] of [1968] GLR 1058 political character, he could not properly and legally order his extradition under our laws.

In the course of the proceedings before the district court, several exhibits were tendered in evidence, amongst them, the duly authenticated depositions, taken in Sierra Leone, and the charges, (running into three counts) upon which the extradition of the respondent herein was sought, namely false imprisonment. Concerning that offence, the particulars of offence made the following allegations: As to count (1) that: “Sandi Jumu . . . assaulted Cyril Bunting Rogers-Wright and then unlawfully and injuriously imprisoned Cyril Bunting Rogers-Wright and detained him for an hour against the will of the said Cyril Bunting Rogers-Wright.” Counts (2) and (3) made the very same allegations of: “unlawful and injurious imprisonment”; of “assault,” and of “detention against the will of Mohamed Sorie Forna (count 2); and Ibrahim Bash Taqi (count 3).” Before the District Court, Accra, however, ex-army Major Jumu was arraigned on the charge of kidnapping, three counts, each touching and concerning the three worthy gentlemen above-mentioned. That offence is contrary to section 89 of the Ghana Criminal Code, 1960 (Act 29). It is not necessary for the purpose of this instant ruling to launch into a definition of the offences of false imprisonment, or of kidnapping. Suffice it to say that while under the laws of this country false imprisonment is not an extradition crime, it is such under the Extradition Act of Sierra Leone (No. 60 of 1962). And there is no dispute in the proceedings that Ghana is a Common-wealth country to which the provisions of this Sierra Leone statute apply. While section 29 of our Extradition Act, 1960 (Act 22), defines what an extradition crime is; section 30 defines a “fugitive criminal” as:

“any person accused or convicted of an extradition crime committed within the jurisdiction of any other country who is in or is suspected of being in Ghana.”

There may very well be some substantial resemblance in the laws of Ghana and those of Sierra Leone touching and concerning the offence of kidnapping. It may indeed not be unlikely that both countries, Sierra Leone and Ghana, recognise the same acts in a particular set of circumstances, to amount to the offences of kidnapping and false imprisonment. That, in my view, was not a matter of any conclusive moment. What I consider to be of vital and significant consideration is whether or not at the trial before his worship J. F. S. Hansen, Esquire, the requesting State of Sierra Leone, by the nature and quality of the evidence she adduced, made out such an affirmative [p.1061] of [1968] GLR 1058 and prima facie case as ought to have impelled the learned magistrate to find for her, the Government of Sierra Leone.

“Extradition, is the surrender to a foreign State of a person accused of a crime committed in that State, in order that he may be tried there”: see Jowitt’s Dictionary of English Law (1st ed.) at p. 772. No criminal is surrendered, therefore, for any political offence, or for the purpose of being put on trail for any other than the extradition offence for which he is to be given up. Before he was moved to order the issuance of a warrant for the arrest and surrender of ex-army Major Sandi Boakarie Jumu, therefore, it became the imperative duty of the requesting state, the appellant herein, to have shown not only that the respondent had committed acts which amounted to the crimes of either false imprisonment in Sierra Leone, or of kidnapping, here in Ghana; she ought, also, to have proved not only that once surrendered, the fugitive shall be tried for no other offences than those for which the respondent’s surrender is being sought; but also and equally vital, she was bound to show that he shall not be tried for any political offences. That being so, it was part of the learned magistrate’s duty to determine the issues whether the respondent had been proved, prima facie, at least to have committed the crimes charged; whether on the facts proved and the evidence adduced, any reasonable jury of the High Court of Ghana would be satisfied enough of the certainty of the charges as to return an unanimous verdict of guilty against the respondent; whether the acts attributed to him were or were not of such a political character as should be an effective bar against his extradition. Where legal and convincing proof is shown in extradition proceedings here, our courts are bound by law to deliver up for trial in their countries, all fugitives from the criminal justice of their native land. We are not bound, however, in the absence of clear and cogent evidence to the contrary, to surrender fugitives for political reprisal and persecution. I have intimately read and considered the record of appeal in careful conjunction with the depositions herein. I have, with equal care and thought, looked at and considered the exhibits tendered below and I have also, furthermore, given serious thought to the arguments and submissions of Mr. Edward Moore, of counsel. I have carried out this necessary judicial exercise having, at every stage, particular and pertinent regard to the ruling of the learned trial magistrate. In the result, I am persuaded by the weight of the evidence on the record to find and to hold that while the facts proved strongly admitted of the possibility of innocence on the part of the respondent as to the charges of false imprisonment and kidnapping; and that while the evidence adduced by the requesting state failed [p.1062] of [1968] GLR 1058 to establish with any certainty the essential fact that on 23 March 1967, the respondent had wilfully and without justification, or excuse, transgressed the criminal law of Sierra Leone; the forthright answer and the affirmative defence put forth by the respondent herein, on the other hand, firmly established an imperative claim to the protection and asylum he has come to this country to seek. I have no doubts at all in my mind that, as the evidence discloses, a certain amount of restraint was placed upon the individual and personal liberties of each and all of the worthy complainants. I am satisfied also (and in this I am amply fortified by the evidence of all the complainants, and of that of such witnesses as Messrs. Samuel Hingha Norman, the second witness, and Michael Powell Buduri Spencer, the fourth witness), that on 23 March 1967, when the respondent is alleged to have assaulted and unlawfully and injuriously imprisoned and detained each and all of the complainants, they had, each of them, the said complainants, already been under arrest, imprisonment and detention upon the clear and express orders of the Force Commander, Brigadier Lansana, some two days earlier. Dr. Mohamed Sorie Forna, the second complainant said in this regard: “I remember on 21 March 1967, I was in Freetown then. I went to the State House at 11 a.m Around 11.30 a.m. I heard from the officers in the State House including Lieutenant Norman that we would not be allowed to leave the State House. It was said to be at the orders of the Force Commander Brigadier Lansana.”

Quite obviously Dr. Mohamed Forna and the others were in fact so restricted and detained at the state House, but certainly not at the instance of the respondent herein. Dr. Forna continued:

“This situation continued until 23 March 1967. There were other persons at the State House including Mr. Siaka Stevens, C. B. Rogers-Wright, Ibrahim Bash Taqi and Mr. S.J.A Pratt. We were released on Sunday March 26, 1967. I spoke to Lieutenant Norman and Spencer and they said that we were being detained by the orders of their superiors.” In the course of his evidence, Mr. Ibrahim Bash Taqi, the third complainant also testified thus:

“On 21 March 1967, I was at the State House … Shortly after I had been sworn in to the office of Minister, Lieutenant Norman walked in to his excellency’s office and told us that we were under house arrest …

Shortly afterwards, Majors Jumu, Blake and Kai-Samba came to the State House. We asked them why

[p.1063] of [1968] GLR 1058 we were under house arrest and they answered that it was on the orders of the Force Commander.”

And the following is what Mr. Mansour Yembe Mansaray, the plaintiffs’ second witness at the District Court, Accra, and a police officer in the employ of the Government of Sierra Leone, said, inter alia, under cross-examination: “On 12 March 1967, Brigadier Lansana declared martial law. He ordered the arrest and detention of the Governor-General, Mr. Siaka-Stevens and the three complainants in this case.” Earlier on, this very same officer had admitted that : “The accused prisoner was a member of the now defunct National Reformation Council. He became a member on or about 23 March 1967. The events occurred about the same time. The National Reformation Council was the Government of the day at the time.” Turning, now, to the defence and explanations of Major Boakarie Jumu, we find him testifying as follows, under cross-examination:

“On 21 March 1967, Brigadier Lansana declared martial law and he imposed a dusk to dawn curfew. He ordered the detention of Rogers-Wright, Bash Taqi, and Dr. Forna … I was Commanding Officer after he had declared martial law and we obeyed. Some orders from Brigadier Lansana did not come directly to me. When I got there the orders had gone to the adjutant.” All that the whole of the evidence of the complainants points to is that after Major Jumu and his colleagues had ousted Brigadier Lansana from power on or about 23 March 1967, and they had constituted themselves into the National Reformation Council, he, the said Major Jumu, respondent herein, and his colleagues, still kept the complainants under house arrest. In all the circumstances of this case, and having particular regard to the state of tension and keen anxiety then prevailing throughout Sierra Leone, I am convinced and satisfied to hold that quite apart from the unchallenged fact that the respondent herein acted under orders prior to 23 March 1967, his act in perpetuating the detention of the complainants never legally and properly amounted to such a public crime as should justifiably warrant his prosecution by the State, here, for either false imprisonment, or for kidnapping. Furthermore, there was not a scintilla of evidence adduced by the Government of Sierra Leone, either in the depositions, or before the District Court, Accra, to establish data from which even the slightest inference could be honestly drawn to show that any of the complainants, or all of them, was, or were forcibly abducted or stolen [p.1064] of [1968] GLR 1058 away from their homes by Major Boakarie Jumu himself, or else upon his orders, and lodged under detention at the State House.

It is my carefully considered view then, that neither the evidence on the depositions nor that presented by the Government of Sierra Leone, disclosed such a sufficiently prima facie case, or at all, as should have impelled the learned magistrate to commit the respondent herein to trial, if the matter had been before him in committal proceedings. That being so, therefore, the learned magistrate was divested of power and competence to order the surrender of the fugitive unto the Government of Sierra Leone. In all the circumstances of the matter before him, then, I hold that the learned magistrate’s refusal to order the surrender of the fugitive was at once reasonable and justified in law. I therefore support, and confirm, and uphold his discharge of the respondent herein. The learned trial magistrate had a discretion to exercise. I am satisfied that he exercised it properly and judicially, seeing that I myself have failed to discover from either the record, or the depositions, or from any of the numerous exhibits tendered, any evidence of criminality on the part of Major Sandi Boakarie Jumu, the respondent herein. An intimate perusal of the record of proceedings and of the depositions has failed to disclose any express or bona fide guarantee or both from the requesting state that when he has been yielded up, the fugitive shall not be denied the full substance of a fair and unoppressive criminal trial. Nor was there aught to show that the fugitive shall be put on trial for the offence charged only, that for which the fugitive’s surrender is so desperately sought. It was urgent and vital that the requesting state gave assurance because it was part of the respondent’s defence that the charge of false imprisonment upon which his government was so frantically thirsting for his extradition was a mere pretext and a camouflage. And he was bold and forthright enough to testify as follows: “My colleagues of the National Reformation Council Majors Blake, Kai-Samba, Leigh and the Governor’s Aide-de-Camp are all under detention. They are being tried for treason. I have a price. It is my view that if I am sent I will be tried for treason.” Such a positive and condemnatory assertion which at once challenged the bona fides of the requesting state quite clearly called for a prompt and decisive rebuttal from the Government of Sierra Leone to neutralise the damming effect of the fugitive’s statement. It is a matter of no mean significance that no such rebuttal evidence was adduced by the requesting state. She could not, that is why she did not; for her own witness, police officer Yembe Mansaray, (although he tried to evade it) was pressed under cross-examination to make the following determinative admissions. He said, inter alia: “I heard that Brigadier Lansana is facing a [p.1065] of [1968] GLR 1058 charge of treason. He was extradited on a charge of false imprisonment … Lieutenant Norman is also facing a charge of treason.”

In connection with this aspect of the matter, it is interesting to note that Mr. Keith Eustace St Bernard, a senior crown counsel attached to the Law Officer’s’ Department Freetown, testified on the depositions that: “Under the laws of Sierra Leone the offence of false imprisonment is a misdemeanour at common law and it is punishable by a fine or imprisonment.” This was no answer to that positive assertion of fact made by the respondent. Taken together with all the relevant facts and circumstances, the above-quoted piece of evidence excites certain pertinent questions to which, again, no answers have been forthcoming from the requesting state. Exhibit J, tendered in evidence by the respondent, is an unchallengeable News Bulletin of Radio Sierra Leone. It runs thus:

“An offer of Le 1,000 for information leading to the arrest of Major S. B. Jumu was made today by the Prime Minister’s Office.

The announcement states:

A release from the Prime Minister’s Office states that a reward of Le 1,000 (one thousand Leones) will be paid to anyone who gives information leading to the arrest of Major S.B. Jumu.

There are indications that Major Jumu is still in Sierra Leone and that he is being given shelter in the north-western Provinces by some ‘big men.’ It must be clearly understood that whoever is found to be sheltering or in any way helping this badly wanted man will be laying himself open to consequences which may include the death penalty.” This News Bulletin was compiled by the Sierra Leonean Ministry of Information, an arm of the government; and it was put on the air on Tuesday 7 May 1968 at 8.10 p.m.

Why did the requesting state classify the respondent as “a badly wanted man, “ and put a price on his head if, in all verity, the respondent is being honestly sought for false imprisonment and nothing more?

Does a mere act of placing some temporary restraint, or even a permanent one, upon a person, if really true, call for the death penalty for anyone found harbouring the person being sought? This has lent decisive weight, and substance, and meaning to the defence urged by the respondent against his surrender.

Having regard to the circumstances of this case, I am of the view that on the facts and the evidence disclosed upon both the depositions and the appeal record herein, no reasonable jury would, upon

[p.1066] of [1968] GLR 1058 a fair and balanced direction, return a verdict of guilty against the respondent.

Learned counsel for the Government of Sierra Leone has urged here that the trial magistrate erred in holding that the acts of Major Jumu, the fugitive, were of a political character. I do not hold with learned counsel whose interpretation of the facts and the circumstances of this case are narrow, and neither generous nor ample.

Appearing on p. IV of exhibit H (the now famous supplement to the Legon Observer of 10 May 1968), is the following statement attributed to Major Blake, one of the members (with the respondent) of the National Reformation Council. That statement which I quote below, gives a clear indication of the object, the purpose of, and the reason for that council which became the Government of the day. It said: “We the Senior Officers had since noticed that the attitude of the Brigadier (i.e. Lansana) was not to bring about the creation of a national Government but to impose Sir Albert Margai as the Prime Minister of this Country.

We the Senior Officers dissociate ourselves with the Brigadier’s line of action, and in the interest of the country have no alternative but to divest the Brigadier of control of this country. The Army and the Police are now in . . . to turn a new page in the history of our beloved country.”

There is ample evidence on the record of proceedings showing that before and at the time of the above printed statement, political normalcy had not returned to Sierra Leone. There was such a state of high political tension, deep and seething disquiet, and disturbing anxiety, as had called for the imposition of martial law, with barricades and soldiers all over the place. Considering the facts of this case which show clearly that there was a state of explosive tension in Sierra Leone, I am impelled to the view that the acts of Major Sandi Boakarie Jumu, as charged, qualified as being of a political nature and they must be so regarded. I am of the firm conviction that where disturbances and unrest have resulted from a set of inflammable political circumstances involving two major or other parties in the country, any third or other force which is not committed to either of the main political parties, but which is competent and effective enough to redeem the country from internecine strife and civil commotion, must promptly intervene to restore peace and normalcy. It is not necessary, in my opinion, that the members of that force owe any allegiance to the main, or other parties. Nor is it vital, either, that members thereof should either be politicians or have political ambitions. I therefore reject as [p.1067] of [1968] GLR 1058 untenable and as lacking in practical merit, learned counsel’s contention that Major Jumu’s disclaimer of political ambitions denuded his acts of political colour.

The evidence very clearly shows that what the respondent and his colleagues did in wresting power from Brigadier Lansana they did in the larger, more nationalistic and deeper patriotic interest of their country, Sierra Leone. No evidence has been adduced to show that the respondent herein was either influenced or motivated by any personal or selfish ambitions in what he did. There was a titanic political struggle between the All Peoples Congress (A.P.C.), and the Sierra Leone Peoples Party (the S.L.P.P.). Both parties had become deadlocked in parliamentary elections fraught with coercion, falsehood, dishonesty and deceit. If then, in the midst of all this the respondent dutifully obeyed the orders of his superior officer, which said orders involved the temporary incarceration, at the State House, of the three complainants; and if upon the said respondent assuming power, he and his colleagues perpetuated for a brief while the detention of those worthy gentlemen (the complainants), such an act of continuing restraint cannot, with any reasonable justification, be said to be other than an act done in furtherance of the political exercise for peace and stability so vital for Sierra Leone in those troubled times. I am satisfied that on the facts, the evidence and the authorities, the acts of the respondent were excited by, they were already incidental to, and they furthermore formed a purposive part of, the political disturbances then existing in Sierra Leone. As to what may amount to an act of a political nature, or character, it is pertinent to observe that while such eminent authorities as Re Castioni [1891] 1 Q.B. 149 and Re Meunier [1894] 2 Q.B. 415 have given various indications as to the meaning of “acts of a political character,” the interpretations given by those and other authorities must not be regarded as conclusive. As nations, states, governments and political parties, particularly here in Africa, grow and change and develop throughout the years, so also must careful meaning be given to, and interpretation of those words made, so that “acts of a political character, or nature,” shall fit relevantly into the political circumstances and conditions peculiar to every state. There are political problems which are peculiarly our own, here in Africa, and they must necessarily differ from those of other countries. As Halsbury’s Laws of England (3rd ed.), Vol. 16 more succinctly puts it at p. 578, note (p): “However, the words must always be considered according to the circumstances existing at the time when they have to be considered; and the evidence as to the law prevalent in a particular state may show that it is necessary, if only for reasons [p.1068] of [1968] GLR 1058 of humanity, to give a wider and more generous meaning to the words that was formerly given.”

See R. v. Governor of Brixton Prison; Ex parte Kolczynski [1955] 1 Q.B. 540, where a revolt on the high seas was held to be an offence of a “political character.” In that case, it was stated, per Lord Goddard C.J. at p. 550 that: “the political character of the offence may emerge either from the evidence in support of the requisition or from the evidence adduced in answer.” In Re Arton [1896] 1 Q.B. 108 at p. 111 Lord Russell of Killowen C.J. threw the following helpful light upon extradition proceedings. He said:

“The law of extradition is, . . . founded upon the broad principle that it is to the interest of civilized communities that crimes, acknowledged to be such, should not go unpunished, and it is part of the comity of nations that one state should afford to another every assistance towards bringing persons guilty of such crimes to justice.” The reference there is to crime.

Our own Extradition Act, 1960 (Act 22), s. 2 (2) as amended by the Extradition Act, 1960 (Amendment) Decree, 1966 (N.L.C.D. 65), para. 1 provides as follows:

“2 (2) A fugitive criminal shall not be surrendered if the offence in respect of which his surrender is requested is one of a political character, or if it appears to the Court or the National Liberation Council that the requisition for his surrender has in fact been made with a view to try or punish him for an offence of a political character.” The courts of this country exist to do fair and substantial justice between all parties, be they indigenous, or aliens. And these courts must never be mistaken for instruments, or agencies, of vengeance. We do not aid, nor do we ever abet, or encourage or both, any acts of vengeful reprisal. It is part of our solemn duty both to protect and to free the innocent, and to hold and punish the guilty, no matter who they be. Satisfied then, that the offence in respect of which the respondent’s surrender is so anxiously demanded is certainly one necessitated by the political situation and circumstances, and that these therefore became acts of a political nature, or character; persuaded by the record that proof is here present which strongly convinces the reason that this instant requisition has been made with the clandestine view that the respondent shall be punished for acts of a political character [p.1069] of [1968] GLR 1058 if surrendered, and never for any crime that he has actually committed, I have no hesitation whatsoever in supporting the learned trial magistrate in his refusal to surrender unto the Government of Sierra Leone, Major Sandi Boakarie Jumu.

It is for these reasons therefore, that I refuse the requesting state leave to appeal. Her appeal fails, in limine. And it is summarily dismissed.

DECISION

Application for leave to appeal refused.

D. R. K. S.