THE REPUBLIC VRS KAYODE & 3 ORS [2024] GHASC 38 (17 July 2024)

IN THE SUPERIOR COURT OF JUDICATURE IN THE SUPREME COURT ACCRA CORAM: PWAMANG JSC (PRESIDING) OWUSU (MS.) JSC PROF. MENSA- BONSU (MRS.) JSC KULENDI JSC ACKAH-YENSU (MS.) JSC KWOFIE JSC DARKO ASARE JSC REFERENCE NO.J6/01/2024 17TH JULY , 2024 THE REPUBLIC …………….. REPUBLIC/RESPONDENT VRS 1.ABIOLA AYORINDE KAYODE …....... 1ST FUGITIVE/APPLICANT ALIAS ABK ALIAS ABDUL RAHMAN IBRAHIM 2.ADEWALE ANIYELOYE 3.RICHARD UZUH 4.BANSON J U D G M E N T KWOFIE JSC: This reference to the Supreme Court was sent by the District Court, Kaneshie, Accra who stated the question for determination as follows: “whether or not the Extradition Treaty between the United States of America and the United Kingdom which was signed on 22nd December 1931 Page 1 of 17 and came into force on 24th June 1935 forms part of the laws of Ghana within the meaning of Article 11(1) (d) of the 1992 Constitution and Section 3(2) of the Extradition Act 1960 (Act 22) in the light of the fact that Article 16 of the said Treaty makes the Treaty applicable to the Northern Territories of the Gold Coast”. BACKGROUND The reference emanated from a request for extradition of the fugitive presented to Ghana by the United States (USA) government based on the Extradition Treaty between the United States of America and Great Britain which was signed on 22nd December 1931 pursuant to the indictment of the fugitive in the United States on 21st August 2019 for offences of fraud committed by the fugitive and his co-conspirators. The 1st fugitive/applicant (referred to in this judgment as the applicant) Abiola Ayorinde Kayode alias ABK has been charged in the United States District Court for the District of Nebraska on 22nd August 2019 on an indictment for engaging in a large transnational criminal enterprise, involving numerous financial fraud schemes in the case of United States vs. Alex Ogunshiakin, Felix Okpoh and Abiola. The operations targeted Chief Financial Officers, Controllers or other financial employees of businesses who received spoofed emails that appeared to be from the chief executive officers, owners or other executives of the businesses and requested that the recipient or target employees submit a wire transfer. They succeeded in defrauding over 70 companies, their victims, who reported a combined loss of over 6 Million Dollars. The applicant Abiola Ayorinde Kayode (ABK) and others conspired to defraud victims and launder the proceeds of the fraud through a business email compromise scheme which is Nigerian based and involves a large, complex, and loosely organized group of criminals with different specialties in various aspects of the scheme. Investigations revealed that illicit funds obtained in the scheme were transferred to bank accounts in China, the United Arab Emirates and other countries. Page 2 of 17 The Applicant’s involvement in the fraudulent scheme included providing Amiyeloye, a member of the scheme with US bank accounts which were used by the applicant to receive the wire transfer from the businesses they defrauded. Investigations further revealed that the applicant’s chat and email messages showed bank accounts requests he made to Ugbah a member of the group and which Ugbah subsequently provided. The applicant also provided details of a Bank of America account and a Transit Employees Federal Credit Union Account. The applicant also received money from Amiyeloye and Uzuh via Nigerian bank electronic transfers. Amiyeloye confirmed the applicant’s involvement in the conspiracy and identified him when shown the photograph that the applicant provided for his 2014 U.S. Visa application. The bank accounts information were also listed on the applicant’s 2014 and 2016 US Visa applications. On this basis, extradition proceedings were commenced before the District Magistrate Court, Kaneshie, Accra for the committal of the applicant, pending the surrender of the applicant to the U.S. Government to stand trial. This application was strenuously opposed by counsel for the applicant who sought leave of the court to file a written response to the extradition request which was refused by the Court. Counsel then filed an appeal to the High Court against the ruling of the District Court ordering him to respond orally to the request for extradition. He also filed an application for stay of proceedings pending the determination of the appeal. Subsequently counsel for the applicant filed an application requesting the District Court to refer the case to the Supreme Court for constitutional interpretation on the basis that the 1931 Extradition Treaty between the United States and Great Britain does not apply to present day Ghana. The District Court in a ruling, granted the applicant’s request to stay the extradition proceedings and refer the case to the Supreme Court. The trial Magistrate was of the opinion that a case had been made for a reference to the Supreme Court as “there appears to be some lack of clarity as to the applicability or otherwise of the 1931 Treaty to the entirety of present day Ghana and as to whether the said Treaty can be considered as being part of the existing laws of Ghana under Article 11(1) (d) of the 1992 Constitution”. The District Court framed this question to the Supreme Court for resolution: Page 3 of 17 i) Whether or not the Extradition Treaty between the United States of America and the United Kingdom which was signed on 22nd December 1931 and came into force on 24th June 1935 forms part of the laws of Ghana within the meaning of Article 11(1)(d) of the 1992 Constitution and Section 3(2) of the Extradition Act 1960 (Act 22) in the light of the fact that Article 16 of the said Treaty makes the treaty applicable to the Northern territories of the Gold Coast. Submissions of Counsel for the Applicant and Counsel for the Respondent to the Supreme Court. In order to further appreciate the circumstances under which this case comes before the apex Court, we will adopt the statement contained in the ruling of the District Court Kaneshie, Accra by which the reference was made under 3 headings: i) Findings of Fact relevant to the matter or question referred to the Court. ii) Arguments of Counsel for the Fugitive/Applicant iii) Arguments of Counsel for the Republic/Respondent i) Findings of Fact relevant to the matter in question referred to the Court. Respectfully, the main finding of fact crucial to the question referred is that the agreement grounding the application of the Republic for extradition of the 1st fugitive from Ghana to the United States of America is the 1931 Treaty between the United States of America and the United Kingdom. ii) Arguments of Counsel for Fugitive/Applicant The crux of the argument of counsel for the fugitive is that the Republic relies on the Extradition Treaty between the United States of America and Great Britain of 1931 to ground their application for extradition whilst there is no valid extradition treaty between Ghana and the United States of America. According to counsel, Article 16 of the Treaty made the treaty Page 4 of 17 applicable to the northern territories of the Gold Coast and that an erroneous interpretation had been adopted by the prosecution that the treaty applied to cover present day independent Republic called Ghana and form a part of the laws of Ghana. It was submitted that Ghana is distinct from the Northern territories of the Gold Coast and that under the Gold Coast (Constitution) Order in Council 1954 and the Ghana Independent Act, 1957, laws applicable in the various territories including Northern territories of Ghana remained so and never received universal application to the whole of present day Ghana. It was averred that the reliance by the prosecution on the Treaty contravened Article 11 of the 1992 Constitution and that there was the necessity for an interpretation by the Supreme Court in accordance with Article 1(2) and 130(2) of the 1992 Constitution, for a pronouncement to be made on the validity of the Treaty relative to the constitutional provisions on the source of law in Ghana. iii) Arguments of Counsel for Republic/Respondent The Respondent’s position was that the Court’s jurisdiction to refer a matter to the Supreme Court for constitutional interpretation only arose where a constitutional provision was unclear or ambiguous and that once a Court had jurisdiction to entertain a matter, it could interpret provisions of the statute concerned. Respondent further stated that there was no issue of ambiguity or conflict in respect of Article 11(1)(d) of the 1992 Constitution to warrant a referral to the Supreme Court. It was submitted that article 16 of the Treaty ought to be read together with Article 2 thereof. In the Respondent’s view, the Extradition Act, 1960 (Act 22) and the Extradition Treaty of 1931 constituted enforceable existing laws under the 1992 Constitution. Counsel for Respondent submitted that the territories of Ghana were defined upon independence as all of Britain’s territories and it was trite that they comprised all the regions which existed Page 5 of 17 in Ghana before the promulgation of the 1992 Constitution. For the Respondent, the issue raised by the Applicant had already been settled by the Courts in the case of The Republic vs. Director of Prisons; Ex parte Allotey and Another (No. 3) (1974) 2 GLR 388 and that no reasonable or exceptional grounds had been raised by the Applicant to warrant a stay of proceedings and a referral of the matter for interpretation. In his statement of case counsel for the applicant further contended that in the absence of provisions by law or an arrangement with a country such as a valid treaty, no extradition can be effected to any country. With specific reference to the Gold Coast and independent Ghana, Counsel submitted as follows: “In the case of the Extradition Acts of 1870 to 1932, section 1 of the Extradition Act of 1959 made the Extradition (Southern Ghana) Ordinance and the Extradition Act of 1870 to 1932 applicable to the whole of Ghana after the attainment of independence. Regrettably, a similar saving was not made for the 1931 treaty between United States and the United Kingdom and it is this absence that leads 1st fugitive (applicant) to contend that the treaty is invalid as it received no application to the territory presently known as Ghana upon independence, hence was not in force to be saved by the prevailing Extradition Act, 1960 (Act 22). THE SUPREME COURT’S REFERENCE It is settled law per Article 130 of the 1992 Constitution that any court before whom a (2) question of law relating to the enforcement or interpretation of the 1992 Constitution arises is bound to refer same to the Supreme Court for determination and dispose of the case in accordance with the decision of the Supreme Court. Article 130 and of the (1) (2) 1992 Constitution provides as follows: “ (1) Subject to the jurisdiction of the High Court in the enforcement of the Fundamental Human Rights and Freedoms as provided in article 33 of this Constitution, the Supreme Court shall have exclusive original jurisdiction in – Page 6 of 17 a) all matters relating to the enforcement or interpretation of this Constitution; and b) all matters arising as to whether an enactment was made in excess of the powers conferred on Parliament or any other authority or person by law or under this Constitution. (2) where an issue that relates to a matter or question referred to in clause (1) of this article arises in any proceedings in a court other than the Supreme Court, that court shall stay the proceedings and refer the question of law involved to the Supreme Court for determination, and the court in which the question arouse shall dispose of the case in accordance with the decision of the Supreme Court” In the case of Adumoah II vs. Adu Twum II (2000) SCGLR 165 the Supreme Court held thus: “The original jurisdiction vested in the Supreme Court under Articles 2 and 130 of the 1992 Constitution to interpret and enforce the (1) (1) provisions of the Constitution is a Special jurisdiction meant to be invoked in suits raising genuine or real issues of interpretation of a provision of the Constitution” It must however be noted that it is not every case involving an allegation of an interpretative issue in proceedings that imposes a duty to refer a case to the Supreme Court. Thus in the case of Republic vs. Court of Appeal Ex parte: James Gyakye Quayson, Civil Motion No. J5/17/2022 judgment of the Supreme Court dated 9th March 2022 (Unreported), this court stated per my respected brother Kulendi JSC as follows: “It is not in every case of an “alleged interpretative issue” that a lower Court must stay proceedings and refer the alleged interpretative issue for determination. The court has a duty to ascertain whether from the Page 7 of 17 arguments of the parties a genuine and real issue of interpretation of a provision of the Constitution arises” Further on, this court in the Gyakye Quayson case (supra) cautioned lower courts as follows: “However, Article 130 does not impose a command that an automatic and unexamined referral be made at every mention or allegation of an interpretative issue in proceedings. Indeed Article 130 enjoins an implied duty on the court to ascertain whether, having regard to the proceedings before it, a real and genuine question of interpretation arises to warrant a reference to the Supreme Court. The duty imposed under Article 130 (2) cannot be subordinated to the opinion or contentions of litigants. Even though other courts are admonished to be more inclined to refer than not, they must still nevertheless reach an informed and judicious opinion whether an interpretative issue is evident before a referral to this court. In this regard, a mere agreement or consensus by parties that an interpretative issue arises in proceedings, should not of itself warrant an automatic referral to this court or even by this court to itself” See also the case of Republic vs. Maikankan (1971) 2 GLR 473 where this court explained the import of Article 130 to the effect that it is only where in proceedings (2) before the lower court, there arises a real and genuine case of interpretation that the lower court is mandated to stay the proceedings and refer the said constitutional issue to the Supreme Court for interpretation. It is necessary to state at the outset that the District Court had to determine a straight forward issue of whether or not the Extradition Treaty between the United States of America and Great Britain which was signed on 22nd December 1931 and came into effect on 24th June 1935 applied to Ghana in order to enable the court to act on it and to order the extradition of the applicant to the United States to stand trial on the charges against him. This was in our view a matter purely within the jurisdiction or competence of the Page 8 of 17 District Court to determine. We will show presently why the District Court ought to have made that determination without a reference to this court. In approaching the issue in this case, we make reference to the provisions of the 1931 Treaty, particularly Articles 1, 2, and 16 thereof which provide as follows: ARTICLE 1 The High Contracting Parties engage to deliver up to each other, under certain circumstances and conditions stated in the present Treaty, those persons who, being accused or convicted of any of the crimes or offences enumerated in Article 3, committed within the jurisdiction of the one Party, shall be found within the territory of the other Party. ARTICLE 2 For the purposes of the present Treaty the territory of His Britannic Majesty shall be deemed to be Great Britain and Northern Ireland, the Channel Islands and the Isle of Man, and all parts of His Britannic Majesty’s dominions overseas other than those enumerated in Article 14, together with the territories enumerated in Article 16 and any territories to which it may be extended under Article 17. It is understood that in respect of all territory of His Britannic Majesty as above defined other than Great Britain and Northern Ireland, the Channel Islands, and the Isle of Man, the present Treaty shall be applied so far as the laws permit. For the purposes of the present Treaty, the territory of the United States shall be deemed to be all territory wherever situated belonging to the United States, including its dependencies and all other territories under its exclusive administration or control. ARTICLE 16 The Treaty shall apply in the same manner as if they were Possessions of His Britannic Majesty to the following British Protectorates, that is to say, Page 9 of 17 the Bechuanaland Protectorate, Gambia Protectorate, Kenya Protectorate, Nigeria Protectorate, Northern Rhodesia, Northern Territories of the Gold Coast, Nyasaland, Sierra Leone Protectorate, Solomon Islands Protectorate, Somaliland Protectorate, Swaziland, Uganda Protectorate and Zanzibar, and to the following territories in respect of which a mandate on behalf of the League of Nations has been accepted by His Britannic Majesty, that is to say, Cameroons under British mandate, and the Tanganyika Territory. As can be seen from the provisions of the Treaty, Article 2 thereof, the Treaty was to apply to the territory of Great Britain and Northern Ireland, the Channel Islands and the Isle of Man and all parts of His Britannic Majesty’s dominions overseas other than those enumerated in Article 14 together with the territories enumerated in Article 16 and any territories to which it may be extended under Article 17. (emphasis mine) Clearly, one only needs to determine what constituted His Britannic Majesty’s dominions overseas referred to in the 1931Treaty. There is no dispute that as at 1931, the British dominions overseas included the Coastal colonies of the then Gold Coast and the Ashanti Colony which were all under British colonial control. This provision clearly did not include Protectorates under Article 16 of the Treaty. To make the Treaty applicable to the Protectorates under Article 16, the said Article 16 expressly provided that the Treaty shall apply in the same manner to the British Protectorates set out therein including Northern Territories of the Gold Coast. Therefore reading Articles 1, 2 and 16 of the Treaty together, it is clear that the Treaty was applicable to the coastal colony of the Gold Coast, Ashanti Territory and the Northern Protectorates and Togoland under British mandate. This geographical area set out therein constituted Ghana at the time of independence in 1957. It should be recalled that the Ashanti Order in Council of 1901 had been passed on September 26, 1901 to annex and make Ashanti part of the British dominions. Section 4 of the said Ashanti Order in Council states as follows: Page 10 of 17 “From and after the coming into operation of this Order, the aforesaid territories shall be annexed to and form part of His Majesty’s dominions and shall be known as Ashanti” In his authoritative book, The Common Law in West Africa (Butterworth’s 1964) Prof W.C. Ekow Daniels stated as follows: “Ashanti was annexed to the “colony” after the final conquest of that territory in 1901, by an Order in Council of September 26, 1901” Clearly therefore, Ashanti, like other areas such as the Coastal part of Gold Coast, became part of the Gold Coast colony in 1901 and was therefore part of His Majesty’s dominions long before the U.S. and Great Britain signed the Treaty in 1931. These areas therefore being British dominions were clearly covered by Article 2 of the Treaty. The contention by counsel for the applicant that the treaty was applicable only to the Northern Territories and did not cover the Gold Coast colony is baseless. It is our view that in reading the Treaty, Articles 2 and 16 have to be read together to be able to appreciate the scope of the treaty. It appears counsel for the applicant isolated Article 16 of the Treaty and used it as the fulcrum of his contention that the Treaty covered only the Northern Territories of the British Empire. The Gold Coast (Constitution) Order in Council, 1954, passed by the Colonial government enumerated all British dominions to include the coastal states as well as Ashanti and the Northern Territories and the territories of the Gold Coast were set out in that Order in Council as follows: “The “Gold Coast” means The Gold Coast Colony, Ashanti, and the Northern Territories of the Gold Coast; and for the purposes of this Order, references to the Gold Coast shall be construed as including Togoland under United Kingdom Trusteeship” Togoland under United Kingdom Trusteeship ie. the Trust territory of Togoland became the Transvolta Togoland. Chronologically, it was the definition of the territories of the Gold Coast set out in the Gold Coast (Constitution) Order in Council, 1954, that were Page 11 of 17 repeated in the Ghana Independence Act 1957 (chapter 6) particularly Section 1 thereof which provided as follows: “1) The territories included immediately before the appointed day in the Gold Coast as defined in and for the purposes of the Gold Coast (Constitution) Order in Council, 1954, shall as from that day together form part of Her Majesty’s dominions under the name Ghana, and ................ a) .................... b) .................... c) .................... Provided that nothing in this section other than paragraphs (a) to (c) thereof shall affect the operation in any of the territories aforesaid of any enactment, or any other instrument having the effect of law, passed or made with respect thereto before the appointed day.” The Independent Act, 1957, therefore apart from defining the territories forming part of Her Majesty’s dominions of the Gold Coast to form Independent Ghana also provided that any enactment in operation in the territories shall continue to be valid. As counsel for the Respondent has correctly stated in his statement of case, once at independence in 1957, these areas were clearly designated as British dominions, at that point, all the territories including the Northern Protectorates moved from Article 16 of the Treaty and now fall urder Article 2 of the Treaty, thereby making the Treaty applicable to the whole of Ghana at independence before they were handed over to independent Ghana. Indeed, it is not disputed that at the time of independence in 1957, the 1931 Treaty formed part of the existing laws of the Gold Coast which metamorphosed into independent Ghana. As such, the Treaty forms part of the laws of Ghana and is fully covered by Article 11 of the 1992 Constitution, the relevant portions of which provides as follows: Page 12 of 17 “11) (1) The laws of Ghana shall comprise a) This Constitution b) Enactments made by or under the authority of Parliament established by this Constitution; c) Any Orders, Rules and Regulations made by any person or authority under a power conferred by this Constitution; d) The existing law; and e) The common law. 4) The existing law shall, except as otherwise provided in clause (1) of this article, comprise the written and unwritten laws of Ghana as they existed immediately before the coming into force of this Constitution, and any Act, Decree, Law or statutory instrument issued or made before that date, which is to come into force on or after that date. 5) Subject to the provisions of this Constitution, the existing law shall not be affected by the coming into force of this Constitution. 6) The existing law shall be construed with any modifications, adaptations, qualifications and exceptions necessary to bring it into conformity with the provisions of this Constitution, or otherwise to give effect to, or enable effect to be given to , any changes effected by this Constitution. The view of this court that the Treaty was part of the existing law which was passed on from the Gold Coast to independent Ghana is similar to the position taken by the Nigerian Supreme Court in the case of Attorney General of the Federation vs. Princewill Ugonna Anvebunwa (2022) LLJR SC 13th April 2022 which was referred to by counsel for the respondent in his statement of case. In that case the Supreme Court of Nigeria had to determine whether the Extradition Treaty of 1931 between the United States of Page 13 of 17 America and Great Britain is applicable to Nigeria as an existing law. The Court held per Helen Moronkeji Ogunwumuu JSC as follows at page 12 thereof: “The treaty between USA and Great Britain in 1931 was applicable to Nigeria because as at 1931 Nigeria was part of the British Empire” The Court further held as follows: “ ........... by virtue of Section 314(4)(b) of the 1999 Constitution as altered being an “existing law” in force immediately before the coming into effect of the 1999 Constitution. This head of objection is misconceived as the trial court had jurisdiction to consider and determine the application” Indeed the issue of whether the 1931 Treaty was applicable in Ghana was determined by the Full Bench of the Court of Appeal which was then the highest court in Ghana in the case of Republic vs. Director of Prisons; Ex parte Allotey and Another (No. 3) (1974) 2 GLR 388. The applicants in that case, a Ghanaian formerly resident in the United States of America and his wife, a black citizen of the United States, were alleged to have defrauded in the United States, a company in Equatorial Guinea through spurious business dealing in cocoa. The two counts in the warrant of arrest issued in Ghana, in support of the request by the Government of the United States for the extradition of the applicants to stand trial in the United States alleged fraud by false pretences to the tune of over a million dollars. This extradition proceedings came before the circuit court which committed the applicants to prison pending their surrender to stand trial in the United States. A habeas corpus application by the applicants was refused by the High Court and the ordinary bench of the Court of Appeal. On a further application for review before the Full Bench of the Court of Appeal, the issue of the applicability of the 1931 Treaty between the United States of America and Great Britain was raised. The Full Bench of the Court of Appeal held per Amissah JA as follows at page 391 of the Report: Page 14 of 17 “That treaty was entered into by the United States and Great Britain on 22nd December 1931. Ghana, then the Gold Coast, formed part of the British dominions to which the treaty applied. The basis of the present request is that this was one of the treaties which Ghana succeeded to on becoming independent. There was no dispute about the application of the treaty to Ghana which is accepted as governing the situation. Article 7 of that treaty provides that: ‘A person surrendered can in no case be kept in custody or be brought to trial in the territories of the High Contracting Party to whom the surrender has been made for any other crimes or offences, or on account of any other matters other than those for which extradition shall have taken place, until he had been restored, or has had an opportunity of returning to the territories of the High Contracting Party by whom he has been surrendered’ The only exception to this application is as to crimes or offences committed after the extradition” To put this matter to rest, we make reference to Section 3 of the Extradition Act, 1960 (2) (Act 22) which provides thus: “3 A country with which an arrangement, in force immediately before (2) the commencement of this Act, was made under the Extradition Acts, 1870 to 1932 is a country to which this Part applies” The Extradition Act 1960 (Act 22) which is the current legislation governing extradition of fugitives in Ghana clearly saved the 1931 Treaty and continued it in force, and the said Treaty forms part of the existing laws of Ghana as set out in Article 11 of the 1992 Constitution. Page 15 of 17 Conclusion We are of the firm view that the trial Magistrate had jurisdiction to consider and determine the application for extradition before her having regard to the well-trodden path set out in the Extradition Act 1960, (Act 22) and the decision in Ex parte Allotey (Supra). We however decided to discuss the legal position and to set out clearly and state the position with regard to the applicability in Ghana of the 1931 Treaty between the United States of America and Great Britain and in answer to the question posed for our decision in the exercise of our jurisdiction, we respond as follows: a) The 1931 Extradition Treaty between the United States of America and Great Britain is one of the treaties which Ghana succeeded to on becoming independent because as at 1931, Ghana, then known as Gold Coast was part of the British Empire. b) The 1931 treaty is part of the existing law of Ghana under article 11 of the 1992 Constitution. (SGD) H. KWOFIE (JUSTICE OF THE SUPREME COURT) (SGD) G. PWAMANG (JUSTICE OF THE SUPREME COURT) (SGD) M. OWUSU (MS.) (JUSTICE OF THE SUPREME COURT) Page 16 of 17 (SGD) PROF. H.J.A.N. MENSA-BONSU (MRS.) (JUSTICE OF THE SUPREME COURT) (SGD) E. YONNY KULENDI (JUSTICE OF THE SUPREME COURT) (SGD) B. F. ACKAH-YENSU (MS.) (JUSTICE OF THE SUPREME COURT) (SGD) Y. DARKO ASARE (JUSTICE OF THE SUPREME COURT) COUNSEL NICHOLAS LENIN ANANE AGYEI ESQ. FOR THE 1ST FUGITIVE/APPLICANT WITH HIM, NII AMARTEY AMARTEIFIO. RICHARD GYAMBIBY (PRINCIPAL STATE ATTORNEY) FOR THE REPUBLIC/RESPONDENT WITH HIM, YVONNE YAACHE-ADOMAKO (ASSISTANT STATE ATTORNEY), ACKAH NYAMEKE (ASSISTANT STATE ATTORNEY) LED BY YVONNE ATAKORA OBUOBISA (MRS.) (DIRECTOR OF PUBLIC PROSECUTION). Page 17 of 17