STATE vs. DIRECTOR OF PRISONS; EX PARTE SCHUMANN [1966]DLCA1756

Date	1966-11-04
Suit No.
Citation No.	[1966]DLCA1756

AKUFO-ADDO C.J.

AZU CRABBE JA

ASSEY J.A.

DARKO (AMOFA AND TAGOE WITH HIM) FOR THE APPELLANT.

FORDJOUR SENIOR STATE ATTORNEY FOR THE RESPONDENT.

[1966]DLCA1756
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													<main id="main" class="content" style="min-height: 60rem" >STATE <o:p></o:p>vs. <o:p></o:p>DIRECTOR OF PRISONS; EX PARTE SCHUMANN <o:p></o:p>[COURT OF APPEAL]<o:p></o:p>[1966] GLR 703<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
4 NOVEMBER
1966.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DARKO (AMOFA AND TAGOE WITH HIM) FOR THE
APPELLANT.<o:p></o:p>

FORDJOUR, SENIOR STATE ATTORNEY, FOR THE
RESPONDENT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

AKUFO-ADDO C.J., AZU CRABBE AND LASSEY
JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF AKUFO-ADDO C.J.<o:p></o:p>This is
an appeal from the decision of the High Court, Accra, refusing to grant an
application for a writ of habeas corpus made by the appellant Dr. Horst
Schumann, a German national resident in Ghana and who was on 25 August 1966,
committed to Ussher Fort Prison to await orders for his extradition to the
Federal Republic of Germany to stand trial on a charge of murder. The charge of
murder brought against the appellant by the Federal Republic of Germany arose
out of the brutal excesses of the Nazi regime in the period of World War II in
furthering their political ideology which called for, among other things, the
extermination of the Jewish race.<o:p></o:p><o:p>&nbsp;</o:p>The
appellant has been resident in this country since 1959 and until 6 March 1966,
has been in the employment of the government as a medical officer. He was
arrested on a warrant issued by the District Magistrate, Accra, upon an order
of the Government of Ghana made at the request of the Federal Republic of Germany
and brought before the said district magistrate under the provisions of the
Extradition Act, 1960,1 as amended by the Extradition Act, 1960 (Amendment)
Decree, 1966.2 On 26 August 1966, as already stated, he was committed to the
Ussher Fort Prison, where he now is, to await surrender by the government.<o:p></o:p><o:p>&nbsp;</o:p>The
appellant applied to the High Court, Accra, for the issue of’ a writ of habeas
corpus directed to the Assistant Director (who is the keeper) of the Ussher
Fort Prison for his release on the ground that his committal to prison by the
district magistrate was wrong in law, that is, in breach of the requirements of
the Extradition Act, 1960, and therefore his incarceration consequent upon that
committal was unlawful. The appellant relied on a number of grounds in support
of his application. These grounds, which in effect are the same as have been
argued before us, appear in his affidavit sworn to in support of’ his
application. They are:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(1) that
the appellant was not given an opportunity to tender evidence to prove that the
offence wherewith he was charged was of a political character as he was by law
entitled to do so under section 9 (2) of Act 22; <o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(2) that
the appearance in the magistrate’s court of a state attorney representing the
Government of the Federal Republic of Germany offended against natural justice
and rendered the proceedings from the viewpoint of the appellant “unfair and
oppressive”; (3) that the charge was bad for duplicity; and <o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(4) that
there was not sufficient evidence before the magistrate on which to find a
prima facie case against the appellant. The High Court heard the application on
16 September 1966, and found against the appellant on all the points raised by
him. The court therefore dismissed the application.<o:p></o:p><o:p>&nbsp;</o:p>In this
court the appellant’s counsel has advanced practically the same points as he
did in the court below with the addition of a further ground alleging that the
statements of the various witnesses in West Germany which formed the main
evidence of the West German Government were unsworn and their admission as
evidence rendered the proceedings a nullity. This latest point may be disposed
of in a few words. Extradition proceedings are by our law governed by the same
principles and rules of procedure as committal proceedings in an indictable
offence (Act 22, s. 9 (1)), and the law does not require that committal
proceedings shall be based on sworn statements of witnesses (see section 182 of
the Criminal Procedure Code, 19603). Section 24 of Act 22 on which the
appellant’s counsel relies does not, by the very plain language of that
section, require that the written statements of witnesses used as evidence in
extradition proceedings shall be sworn. Any interpretation of that section to
the contrary is a misinterpretation. Moreover, the section refers specifically
to proceedings relating to a convicted fugitive and not to an accused fugitive
as is the case before us.<o:p></o:p>