HIGH COURT, ACCRA
Date: 8 JULY 1974
ABOAGYE J
NATURE OF PROCEEDINGS
APPLICATION for an extension of time within which to appeal against the decision of a circuit court judge sitting as a district magistrate in extradition proceedings. The facts are sufficiently stated in the ruling.
COUNSEL
Amarfio for the applicants.
Gyeke-Dako, Director of Public Prosecutions, for the respondent.
JUDGMENT OF ABOAGYE J
On 29 August 1973, his honour Judge Andoh (as he then was), sitting as a district magistrate, committed the applicants to the James Fort Prison to await the warrant of the appropriate commissioner for their surrender to the Government of the United States to stand trial for the offence of fraud by false pretences.
After the committal, the applicants were told of their right under section 11 (1) of the Extradition Act, 1960 (Act 22), to apply for an order of habeas corpus. An application for an order of habeas corpus was accordingly made to the High Court on behalf of the applicants but the order was refused on 20 September 1973 in a ruling reported in [1973] 2 G.L.R. 480. The applicants appealed to the Court of Appeal against the order of the High Court and the appeal was dismissed on 19 June 1974. The applicants did not appeal against the decision of the district magistrate. They have nearly ten months after the magistrate had given his
[p.199] of [1974] 2 GLR 197
decision applied to this court for an extension of time within which to appeal against the decision of the magistrate.
At the hearing of the application, Mr. Gyeke-Dako, Director of Public Prosecutions, submitted that the application could not be entertained for two reasons, namely, (1) that the applicants had no locus standi and (2) that the point which the applicants intend to argue, if their application were granted, has already been disposed of by the Court of Appeal which is the highest court of the land. Mr. Gyeke-Dako argued that although a party aggrieved by the decision of a district magistrate has a right under section 19 (3) of the Courts Act, 1971 (Act 372), to appeal to the High Court against that decision, a party committed to prison by a district magistrate in extradition proceedings has no right of appeal against the decision of the magistrate. Counsel argued that extradition proceedings are governed by the Extradition Act, 1960 (Act 22), and by section 11 (1) of the Act, if a magistrate commits a fugitive criminal to prison pending his surrender to the requesting country his only remedy lies in an application for an order of habeas corpus.
On his second ground of objection the learned Director of Public Prosecutions pointed out that in their appeal to the Court of Appeal the applicants complained, among sixteen other grounds, that “the learned judge erred in holding that the evidence produced at the trial was sufficient according to Ghana law to warrant the committal of the appellants to face trial in the United States.” The dismissal of their appeal implied that the Court of Appeal found that a sufficient case was made out against the applicants in the district court. The applicants should therefore not be permitted to appeal to the High Court on a ground which has been determined by the Court of Appeal.
Mr. Amarfio, counsel for the applicants, does not agree that the only course open to a fugitive criminal who is committed to prison by a district magistrate is to apply for an order of habeas corpus. Counsel submitted that section 11 (1) of the Extradition Act, 1960, merely imposes a duty on the magistrate to inform the prisoner that he has a right to apply for an order of habeas corpus within fifteen days of his committal to prison. That provision in the Act does not exclude the right of the prisoner under section 19 (3) of the Courts Act, 1971, to appeal against the decision of the magistrate.
On the second ground of objection Mr. Amarfio argued that the appeal against the decision in the habeas corpus proceedings was different from an appeal against the decision of the magistrate. Counsel submitted that the appeal against the decision of the magistrate would afford the applicants room for manoeuvring.
The proceedings which culminated in the committal of the applicants to prison are, no doubt, extradition proceedings governed by the Extradition Act, 1960. Section 11 (1) of the Act prescribes the procedure to be followed where a fugitive criminal is committed to prison by a magistrate. Subsections (1) and (2) of the section read:
[p.200] of [1974] 2 GLR 197
“(1) If the District Magistrate commits a fugitive criminal to prison, he shall inform the criminal that he will not be surrendered until after the expiration of fifteen days, and that he has a right to apply for an order of habeas corpus.
(2) Upon the expiration of fifteen days, or, if an order of habeas corpus is issued, after the decision of the Court upon the return to the order, as the case may be, or after such further period as may be allowed in either case by the Minister, the Minister may by warrant order the fugitive criminal (if not delivered on the decision of the Court) to be surrendered to such person as is in his opinion duly authorised to receive the fugitive criminal by the country from which the requisition for the surrender proceeded, and the fugitive criminal shall be surrendered accordingly.”
Aggrieved parties in the district court have always had the right of appeal and if it was the intention of the legislature that a person committed to prison in an extradition matter should, if dissatisfied with the committal, appeal against the decision of the magistrate, section 11 (1) of the Extradition Act, 1960, would not have been enacted. In my opinion, therefore, section 11 (1) of the Extradition Act, 1960, excludes the right of appeal against the committal of a fugitive criminal to prison in an extradition matter.
There was no meaningful answer to the second ground of objection raised by the learned Director of Public Prosecutions. In the notice of application for an extension of time filed on behalf of the applicants it is stated, “Thus the appellants wish to apply for extension of time within which to appeal against the said district court ruling because their contention is and has always been that no prima facie case had been made out against them to warrant their extradition to the United States.”
The Court of Appeal has already dismissed the applicants’ appeal that was based on the ground sought to be argued before the High Court and it will amount to contempt of the Court of Appeal to entertain any appeal based on that ground.
I uphold the objection raised by the learned Director of Public Prosecutions and dismiss the application for an extension of time within which to appeal against the decision of the district court.
DECISION
Application for extension of time to appeal dismissed.
S.Y.B.-B.
