REPUBLIC vs. DIRECTOR OF PRISONS; EX PARTE ALLOTEY & ANOTHER [1973] 2 GLR 480

NATURE OF PROCEEDINGS

APPLICATION for habeas corpus by applicants 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 are fully stated in the ruling.

COUNSEL

Amofah for the applicants.

Kaleo Bio, Senior State Attorney, with him Miss Ampofo Anti, Assistant State Attorney, for the respondent.

JUDGMENT OF APALOO AG C. J.

Some time in February this year, the Government of the United States of America requested of the Ghana Government the extradition for trial in that country, of the two applicants who are husband and wife. They were accused of a number of offences, the most prominent of which is fraud by false pretences. Accordingly, they were apprehended in this country on a warrant signed by a district magistrate and charged on two counts of fraud by false pretences. Proceedings to extradite them were accordingly commenced before the district court. The proceedings, by order of the Chief Justice, were transferred to the circuit court where they were heard and concluded before Judge Andoh (as he then was) on 29 August 1973. Objection to the extradition of the applicants was taken on a great many grounds, some of law, others of mixed fact and law and others on the facts. In a careful and very painstaking ruling which ran into twenty pages of typescript the learned judge dealt with the points seriatim. In the end, the judge considered that there was a strong and probable presumption of guilt established against the applicants on the charges. Having felt satisfied that the requesting government fulfilled all the conditions laid down by law, he held that the applicants were liable to be surrendered to the United States Government to stand trial in the State of New York. Pending their extradition, the judge ordered them both to be committed to prison.

They seek by this motion to question the validity of the proceedings and order and argue for their release. The grounds on which they contest [p.483] of [1973] 2 GLR 480 the order are contained in an affidavit sworn to by the first applicant. These I am soon to examine but before doing this, I should relate the facts as revealed by the depositions. The first applicant is a Ghanaian who went to the United States, it is said about 25 years ago. His wife is an American citizen by birth but seems to have originated from the West Indian island of Barbados. The evidence shows little of their background educationally or otherwise save that the first applicant was passing off as a prince and the second applicant a princess. Some time in 1970, they applied to the Government of Equatorial Guinea for permission to import that country’s cocoa for sale in the United States. That government granted them such permission and authorised its representative in the United States to communicate this to them. He did by a letter dated 14 September 1970. They accordingly commenced negotiations with the Chamber of Agriculture at Santa Isabella called for short Camara. They offered to buy the cocoa at 30.33 cents a pound that being approximately the then prevailing market price. This offer was declined by Camara who made a counter offer of 34 cents per pound. Unless the applicants had reason to believe that the market price in the United States was going to appreciate within a short time, they were consciously heading for a loss. It is to be noted that the applicants had no capital nor expertise of any sort in the cocoa trade.

On their agreeing to buy at the price offered by Camara, the latter agreed to sell and ship them 2,000 tons. When they became cognisant of this, they formed and registered a business named Stephen & Co. On the very day that they did this, they contracted to sell the bulk of the shipment to General Cocoa Company – a firm in the United States, at a price which was less than they offered to pay for it. That company in due course issued letters of credit in their favour. When the shipment was made, the legal documents of title were forwarded to a bank in the United States called the Community National Bank in Staten Island. The applicants got hold of these and on delivering them to the Cocoa Company were paid 80 per cent of the contract price. When the cocoa eventually arrived and was passed by the Food and Drug Administration, they were paid the balance of the contract price. This came to a grand total of $1,015,755.93. The applicants paid none of this to Camara although they sent a telegram and made other written promises of payment. On receipt of this sum, they changed their bankers. They opened and paid this sum to their credit in a bank called J. Henry Schroeder. Before then, they had dealt with the Community National Bank.

While the first shipment was still on the high seas, the applicants again offered to buy another 2,000 tons of the same grade of cocoa from Camara. At that date, that is December 1970, the prevailing market price in the United States had dropped to about 28 cents. But the applicants again offered to buy it from Camara at 34 cents per pound. They again entered into a contract to sell it to the self-same purchasers – the General Cocoa Company. In about January 1971, that company again issued letters of credit with another bank – the Morgan Guaranty Trust Com

[p.484] of [1973] 2 GLR 480 pany in favour of the applicants. Camara again agreed to the offer and again shipped the same tonnage of cocoa to Stephen & Co. But this time, the shipping documents were forwarded to and held by a Canadian Bank – the Bank of Montreal – who had strict instructions not to release these until one half of the purchase price had been paid. One half of this came to $747,874.70. Apparently, the applicants who had received just over a million dollars a short while before, could not find this sum. So their purchasers funded them. They therefore issued a cheque of their own for this sum in favour of Camara and delivered this to the Canadian Bank in return for the shipping documents. When they obtained these, they made them over to the General Cocoa Company. When the cocoa arrived and passed through the food and drug inspection, they received the balance. On this second shipment, they obtained a net sum of $188,303.79.

They did not pay a cent thereafter to Camara.

There is evidence from the deposition that the applicants invested $100,000 in a speculative venture in the United States and gambled at a casino and lost $600,000 in Nassau, Bahamas. It is clear these funds came from the cocoa proceeds. There was also produced in evidence, a telegram which the applicants were said to have sent to Camara in Santa Isabella (exhibit B); they state in that telegram that they had sent a special bearer to Duala in the Cameroons with cheques to meet the total payment of the first shipment and the balance due on the second shipment. This turned out to be false. During the extradition proceedings in the court below a Mr. Alfredo Makudo Nanga, who is the President of Camara, Santa Isabella, gave evidence and said that apart from the one- half payment which they received on the second shipment, his organisation received nothing else from the applicants. When asked why he agreed to sell the cocoa to Stephen & Co. his answer was: “I did so because I trusted their good faith and as they showed interest in the cocoa. Apart from this, they promised to pay, hence I shipped the cocoa.” The witness testified that attempts to get in touch with Stephen & Co. were unsuccessful, the last contact he made with them being in July 1971. Apparently, they left the United States at an unspecified date. According to the second applicant, they arrived in this country on 7 May 1972.

The second applicant entered the witness-box and denied that they had intended to defraud Camara. She admitted that only half of the amount due on the second shipment was paid to Camara but she said that this was because they were let down by the Community National Bank who had promised to finance the shipment. She gave a fairly lengthy account of the various steps they took to enter and remain in the cocoa business and what steps they took to insure against fluctuation in price, technically described as hedging. She also related how, acting on expert advice, they invested $100,000 in a speculative account and lost. When asked whether they sent the telegram exhibit B to Camara alleging that they had sent a special bearer with the payments, she said “I am confused about exhibit B; I do not remember sending a cable like exhibit B to Camara.” She gave as the motive for the charges brought against

[p.485] of [1973] 2 GLR 480 them, the fact that they were black not white. As she put it, “The charges are malicious and are wicked and they have been preferred against Stephen & Co. because Stephen & Co. is a black company not white.”

As I said, the learned judge after considering the whole evidence formed the view that there was a strong and probable presumption of guilt of fraud by false pretences established against both applicants. It is now necessary to consider the grounds on which the order for their surrender was questioned. It was urged that this was a normal business transaction in the cocoa trade and that no mens rea can be inferred from the facts. The judge’s view was that by offering to buy the cocoa at 34 cents per pound, the applicants impliedly represented to Camara that they had the means to make such payment. They did not only not have the means but such of the purchase price as they came by was withheld and eventually converted by them to their own use. The judge concluded from these facts that a reasonable jury could infer an intention to defraud.

That conclusion seems to me solidly based. I agree of course that this is a business transaction but there is such a thing as honest and dishonest trading. The latter method of business activity was envisaged by section 135 of the Criminal Code, 1960 (Act 29), and specifically legislated against. That section provides that:

“Where a person orders, or makes a bargain for the purchase of, any goods or things by way of sale or exchange, and, after obtaining the same, he makes default in the payment of the purchase money or in rendering the goods or things to be rendered by him by way of such exchange, he shall be deemed to be guilty of defrauding or attempting to defraud as the case may be, by false pretences if — (a) at the time of giving the order or making the bargain he intended to make default as aforesaid; and (b) the order was given, or the bargain was made with intent to defraud and not in the course of any trade carried on in good faith.”

On the facts, there is no dispute that the applicants under the business alias of Stephen & Co. ordered the cocoa from Camara and it is also not in dispute that they made default with the payment of a large part of the purchase money. The applicants themselves offered to buy cocoa at a price at which they could reasonably sell it in order to meet their obligation of effecting payment. But they agreed to pay a price which was beyond the prevailing market price and on receipt of the goods sold to them for far less than they contracted to pay. It seems obvious that at the time of making the offer, they knew they would default and intended so to do.

As to whether at the time they gave the order their intention was to defraud, one can only infer this from the evidence. The fact has already been stated that at the date of the orders the applicants had no capital to prop up a loss yet they agreed to pay a higher price than they could reasonably expect to obtain. Furthermore, even such price as they

[p.486] of [1973] 2 GLR 480 obtained was not paid over in part satisfaction of their contractual liability. A substantial part of it was converted to their own use. The one-quarter of the price they paid was used to enable them effect delivery of a second order. Although they promised to make payment, they left their business address and indeed the jurisdiction of the United States and put themselves beyond the reach of their creditors. In my opinion, if the facts deposed to by the witnesses of the United States are accepted by a jury, it should conclude as a matter of common sense that in making the purchases of the cocoa from Camara, the applicants were not carrying on business in good faith but were minded to defraud their vendors. Like the learned judge below, I also think that the evidence discloses a strong and probable presumption of guilt of the offence of fraud by false pretences and counsel’s contrary contention ought to be rejected.

It was next argued for the applicants that the judge below was wrong inasmuch as he failed to consider the question of double criminality and this failure occasioned a grave miscarriage of justice. Counsel cited and relied on An Introduction to International Law by J.G. Starke (5th ed.). At page 259 of that book the following appears:

“As regards the character of the crime, most States follow the rule of double criminality, i.e., that it is a condition of extradition that the crime is punishable according to the law of both the state of asylum and of the requesting state.”

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.

It was next contended that the judge below was wrong in ordering the surrender of the applicants inasmuch as they were citizens of Ghana on Ghana soil. It was said this was the recognised international practice and counsel prayed in support Starke, An Introduction to International Law, p. 262 and Oppenheim’s International Law (8th ed.), p. 700 and argued that a Ghanaian who commits an offence abroad is immune from extradition as soon as he enters the haven of Ghana. The learned authors of the textbooks on which counsel relies do not say this is an invariable international custom. They think this depends on the treaty between the state of asylum and the requesting state. Thus Starke says at p. 293:

“There is uniformity of State practice to the effect that the requesting State may obtain the surrender of its own nationals or nationals of a third State. But most states usually refuse the extradition of their own nationals who have taken refuge in their territory,

[p.487] of [1973] 2 GLR 480 although as between States who observe absolute reciprocity of treatment in this regard, requests for surrender are sometimes acceded to.”

Oppenheim’s International Law (8th ed.), p.699 puts it as follows:

“Many States, however, such as France and Germany, have adopted the principle of never extraditing one of their own subjects to a foreign state but themselves punishing their own subjects for grave crimes committed abroad. Other States e.g. Great Britain have not adopted this principle, and, in the absence of treaty provisions to the contrary, make no distinction between their own subjects and other persons who are alleged to have committed extraditable crimes abroad.”

There is nothing in the treaty between Great Britain and the United States (exhibit HH) which prevents either party from extraditing its nationals. On the contrary, a fugitive criminal was defined by section 30 of our own Extradition Act, 1960 (Act 22), widely enough to include citizens of this country. It says: “`Fugitive criminal’ means 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.”

Counsel however says that the words “any person” should be interpreted restrictively to exclude a Ghanaian inasmuch as this interpretation will accord with international usage. I have already shown even by the authorities on which counsel relies, that there is no uniform international practice and there is no warrant for the wholly artificial construction which counsel advocates. It seems to me that it is accession to counsel’s submission that will offend against the policy reason behind the international practice of surrendering fugitive offenders. It is based on the maxim aut punire aut dedere which means, the offender must be punished by the state of refuge or surrendered to the state which can and will punish him. It is plain that the courts of this country have no power to invoke criminal sanctions against Ghanaians who have committed the offence of fraud by false pretences abroad in respect of property in which the state of Ghana has no interest.

The problem of Ghanaian nationals committing offences abroad was tackled by Parliament by the passage in July 1970 of the Criminal Procedure Code (Amendment) Act, 1970 (Act 333), which confers jurisdiction on the courts of this country to try specified offences committed abroad by Ghanaians employed in the Ghana Missions, or by statutory corporations and generally relates to dishonest dealing with public property. The Courts Act, 1971 (Act 372), repealed this legislation but re-enacted it in section 51 of that Act. It does not include the offence of fraud by false pretences committed otherwise than in the premises of a Ghanaian diplomatic mission.

Accordingly, if counsel’s submission is right, the applicants, who the evidence prima facie shows to have committed fraud involving multi-million dollars, would be set at liberty. Such a result would be out of

[p.488] of [1973] 2 GLR 480 step with civilised international jurisprudence. In any event, this untenable submission can only affect the first applicant. The second applicant is an American citizen. The United States Consul to Ghana has certified her nationality as such and this has not been controverted.

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.

In any event, I cannot see how the granting of unqualified asylum to Ghanaians who commit grave offences abroad would advance this country’s public interest. Such an indulgent attitude to our erring countrymen will be counter-productive. I think it would inhibit foreign countries from opening their doors to them and make them unwelcome. Such a policy would, I should have thought, be injurious to the public interests of Ghana. The learned judge below held that both Ghanaians and foreigners alike are liable to extradition under our Act of 1960. I entirely agree and reject counsel’s submission on this score.

It was next submitted that in view of the singular condition of the applicants, it would be unfair and oppressive to surrender them and that in any event, it would be too severe a punishment. It was said that the applicants have settled here with all their children of tender years and that it would be unjust to uproot them. It was also said that the first applicant in particular, has spinal trouble and was therefore a sick man who should be left undisturbed. In Ghana, it was submitted, the applicants have settled down to legitimate business and have committed themselves by contract to the Ghana National Trading Corporation to supply it with rice from Pakistan and they would default on this contract if they were extradited.

I feel some sympathy for this plea but I am wholly unmoved by it. I do not consider these good grounds to refuse the surrender of the applicants. The offences they are alleged to have committed are by no means trivial ones. It is not suggested with any seriousness that the request for

[p.499] of [1973] 2 GLR 480 their surrender was not made in good faith nor in the interests of justice. It certainly accords with public policy that serious crimes such as the ones alleged against the applicants should not go unpunished. The witnesses on whose testimony reliance can be placed to punish the applicants are all in the United States and that country has the greater facilities for ascertaining the truth.

The first applicant is said to have lived in the United States for 25 years and married a citizen of that country and made that country his second home. If he is made to answer for any crimes he committed there, I cannot regard this as too severe a punishment. If his spinal trouble could not be cured for 25 years, it cannot be urged today as a serious obstacle to his being returned. The fact that the applicants are said to have entered into business relations with the Ghana National Trading Corporation is no valid ground to refuse their extradition. I am not certain that it is necessarily contrary to the best interests of the Ghana National Trading Corporation to be rid of business partners such as the evidence, prima facie, shows the applicants to be. The fact that their young children are here with them gives me no trouble. Nobody seeks to eject them. If the applicants choose to let them remain here or return them to the United States, it is entirely a matter for their best judgment. It is not a relevant consideration in this case. My conclusion is that it is neither unjust nor oppressive to order the return of the applicants to the United States nor do I consider it too severe a punishment to let them stand their trial in a country in which they have lived and worked for a quarter of a century, and where they are said to have a home.

It was finally urged on their behalf that the request for their surrender has some political undertones. It is said on this imprecise ground that inasmuch as the applicants are black not white, they are unlikely to receive a fair trial in the United States or at any rate are likely to be denied justice. Perhaps one would like to see more racial harmony and more equal treatment of members of the black race than is at present possible in the United States but it would be wrong to assume that the courts of that country will not discriminate between the true and the false. The real complainant in this case is the black Government of Equatorial Guinea and it is not clear why the jury of the United States, if their decisions are based only on racial considerations, would wish unjustly to find for one black person as against the other. At least in a case involving only blacks, the argument of colour prejudice must be extremely tenuous. An argument of this type with slightly different hue was made to the court below. It carried no conviction in the mind of the judge. It does not weigh with me either.

A number of other points of a more or less technical nature were raised and decided adversely to the applicants in the court below. They were not the subject of any grievance ventilated before me and I say nothing about them.

[p.490] of [1973] 2 GLR 480

In my opinion, the 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.

DECISION

Application refused.

S.O.