Ghana v Director of Prisons, ex parte Allotey
| Jurisdiction | Ghana |
| Court | Court of Appeal (Ghana) |
| Date | 10 December 1974 |
(Apaloo, Ag.C.J.)
(Sowah, Arin and Hayfron-Benjamin, JJ.A.)
(Amissah, Jiagge, Archer, Kingsley-Nyinah and Francois, JJ.A.)
Jurisdiction In general Territorial limits of jurisdiction Jurisdiction of courts to try offences taking effect abroad The law of Ghana
The individual in international law Extradition Extradition of nationals Whether nationals can be extradited Whether any uniform international practice on the question of extradition of nationals The practice of Ghana Conditions of extradition Extraditable crimes Rule of dual criminality The standard of proof in extradition matters Proper test Whether strong or probable presumption of guilt necessary for order of surrender Jurisdiction of the requesting State to try the offence How determined Jurisdiction of courts to try offence taking effect abroad The law of Ghana
Summary: The facts:Allotey, a Ghanaian citizen, and his wife, a United States citizen of Barbadian extraction, had allegedly defrauded the Republic of Equatorial Guinea through spurious business dealings in cocoa. The fraud had allegedly been effected by false pretences and representations made in the United States but taking effect in Equatorial Guinea. Allotey and his wife came to Ghana. The United States requested their extradition for trial on charges of fraud in the United States. The following questions were raised:
(1) Whether a Ghanaian national could be extradited from Ghana for an offence committed abroad;
(2) Whether the rule of dual criminality was satisfied;
(3) Whether the proper standard of proof in extradition matters was that there must be a strong and probable presumption of guilt before the court could order extradition;
(4) Whether the United States had any standing to request extradition since the offence had taken effect in Equatorial Guinea.
Held (by the High Court and Court of Appeal):(1) There was no uniform international practice regarding the extradition of nationals. Ghana had opted for the British principle under which nationals could be extradited for an offence committed abroad.
(2) The rule of dual criminality was satisfied since fraud by false pretences was an offence both in the United States and in Ghana.
Held (by the Court of Appeal, Full Bench):(1) The proper standard of proof to be applied in extradition matters was not that of satisfaction of a strong and probable presumption of guilt but that there was evidence to justify the accused person being put on trial.
(2) The Ghanaian courts would have jurisdiction to try the offence if the acts performed in the United States had been performed in Ghana and they would accordingly recognize the jurisdiction of the United States courts in the matter. The United States therefore had standing to request extradition.
The following is the text of the judgment of the High Court, delivered by 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 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 Companya 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 purchasersthe General Cocoa Company. In about January 1971, that company again issued letters of credit with another bankthe Morgan Guaranty Trust Company 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 Bankthe Bank of Montrealwho 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...
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