COURT OF APPEAL, ACCRA
Date: 12 JULY 1974
SOWAH JA
NATURE OF PROCEEDINGS
APPEAL from the ruling of Apaloo Ag.C.J. refusing an application for habeas corpus by the appellants who had been committed to prison pending extradition to the United States to stand trial for fraud by false pretences committed in that country. The facts as stated in the headnote are taken from the ruling of Apaloo Ag.C.J. reported in [1973] 2 G.L.R. 480.
COUNSEL
W. Amarfio for the appellants.
K. Gyeke-Dako, Director of Public Prosecutions, for the respondent.
JUDGMENT OF SOWAH JA
On 19 June 1974 we dismissed the appeal and reserved our reasons. We now proceed to give those reasons. The facts of the case have been fully set out by the learned judge, Apaloo Ag.C.J. sitting as an additional High Court judge, in his ruling (reported in [1973] 2 G.L.R. 480) and by the learned circuit court judge in his decision and it will be a waste of effort in setting them down herein or paraphrasing them. We therefore adopt the facts as stated in Apaloo Ag.C.J.’s judgment.
Numerous grounds of appeal were filed but upon a careful study of the record of appeal, the grounds argued by counsel and the arguments placed before us were repetitions of matters raised before the circuit court on the extradition proceedings and in the habeas corpus proceedings in the High Court. There is no appeal before us in respect of the extradition proceedings in the circuit court.
The appeal is from the ruling of Apaloo Ag.C.J. in which the learned judge held at p. 490 that:
“[T]he applicants are fugitives from justice. Having considered all the matters urged on their behalf, I think it is right and proper that they be surrendered to the United States to face justice. It follows that in my judgment, this motion fails and ought to be and is refused.”
[p.387] of [1974] 2 GLR 385
As already observed nothing new had been urged upon us or been said which indicates that the learned judge was anything but right. The issue of double criminality was again raised before us but the learned counsel failed to indicate in what respect the learned judge went wrong in his analysis of the law. We can therefore only adopt the words of Apaloo Ag.C.J. in which he held at p. 486 that:
“I think there is very little that can be said for this submission. That the offence of fraud by false pretences is an offence in the United States, is beyond question. Mr. Moore who is the Assistant United States Attorney for the East District of New York, swore that such offence is punishable under section 1341 of Title 18 of the United States Code. It is also an offence cognisable and punishable under section 131 of our own Criminal Code. Furthermore, this offence appears as an extradition crime in the treaty signed between Great Britain and the United States and continued in force by section 3 of the Extradition Act, 1960 (Act 22). This submission can lay no claim to merit.”
The next serious contention was that the learned judge was wrong in refusing to allow the application for habeas corpus inasmuch as the applicants were Ghanaian citizens who were immune from surrender while taking refuge in their own homeland. This argument could only refer to the first appellant who is a Ghanaian citizen and not his wife, the second appellant, who is an American citizen. On this issue the learned judge after considering the law held at p. 488 that:
“On the question of the immunity of Ghanaians to be surrendered while taking refuge on their own soil, Mr. Amofa, who presented an unyielding argument on all fronts, cited and relied on section 2 of the Affairs of State Decree, 1972 (N.R.C.D. 58), and submitted that that section buttresses his argument that it accords with the public policy of Ghana to refuse to extradite its own nationals. I cannot see it. The section on which reliance is placed, is section 2 and reads as follows: ‘The Government of Ghana shall conduct its international affairs in consonance with accepted principles of public international law and diplomacy in a manner consistent with the national interest of Ghana.’ I cannot accept that this section entitles Ghana to disregard its treaty obligations with regard to extradition. On the contrary, it enjoins it to respect its international obligations. France and Germany which are said to act on the principle of not extraditing their own nationals, have adequate public institutions for punishing such of their nationals as commit grave offences abroad. Ghana has not conferred carte blanche jurisdiction on its courts to try all grave crimes committed by its nationals in foreign lands. It opted by its own legislation for the British principle which does not discriminate in favour of its nationals.”
[p.388] of [1974] 2 GLR 385
It was after considering carefully the arguments of counsel for the appellants and the ruling of Apaloo Ag.C.J. that we dismissed the appeal as completely devoid of any merit. Finally we think that the law as stated by Apaloo Ag.C.J. on the issues, is with respect, correct and we adopt both his reasons and conclusion.
DECISION
Appeal dismissed.
K.T.
