Division: IN THE HIGH COURT, ACCRA
Date: 10TH JANUARY, 1959.
Before: SMITH J.
In re THE PREVENTIVE DETENTION ACT, 1958
AND
In re OKINE & ORS.
AND
IN RE APPLICATION FOR A WRIT OF HABEAS CORPUS SUBJICIENDUM
CASES REFERRED TO
(1) Progressive Supply Co. Ltd. v. Dalton ([1943] Ch. 54);
(2) Land Realization Co. Ltd. v. Postmaster-General ([1950] Ch. 435);
(3) In re Application by Beck and Pollitzer and ors., and in re the Requisitioned Land and War Works Act, 1945 ([1948] 2 K. B. 339);
(4) Point of Ayr Collieries, Ltd. v. Lloyd-George ((1943) 2 All E.R. 546);
(5) Liversidge v. Anderson and anor. ([1942] A.C. 206);
(6) In re City of Plymouth (City Centre) Declaratory Order, 1946, Robinson v. Minister of Town and Country Planning ([1947] K.B. 702);
(7) Carltona, Ltd. v. Commissioners of Works and ors. ((1943) 2 All E.R. 560);
(8) R v. Home Secretary, ex parte Budd (1942) 1 All E.R.373).
COUNSEL
Dr. Danquah (with him Koi Larbi) for applicants.
Crabbe for respondents.
JUDGMENT OF SMITH J.
(His Lordship stated the facts, and proceeded:-)
The Preventive Detention Act, 1958, is analogous to the Preventive Detention Regulations which were in force in Britain as a war-time measure, and the cases and authorities cited to me have almost entirely related to war-time detentions.
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The Preventive Detention Order sets out that the Governor-General is satisfied that it is necessary to make the Detention Order in question. It was signed by the Minister of Defence: there is nothing against his signing this order, either in law or in the circumstances of this case.
The question of the necessity of making the order at all is not for the Court to consider (Progressive Supply Company Ltd. v. Dalton ([1943 Ch. 54)). It appears well established that where a statute requires only that a Minister shall be “satisfied” that certain action is necessary, the effect is “virtually to exclude all judicial review on the ground that Ministerial action taken under (such) authority is purely administrative” (Laws and Orders -Sir Carleton Kemp Allen). Many cases and authorities have been cited in support of this.
In Land Realization Co. Ltd. v. Postmaster-General ([1950] Ch. 435 at p.440) Lord Romer said, “It is well settled that where a statutory provision empowers a Minister to do something if he is satisfied with regard to a certain state of affairs, then a statement by him that he is so satisfied will be accepted in these Courts.” Reference may be made also to the case of In re an Application by Beck and Pollitzer and others and in re the Requisitioned Land and War Works Act, 1945 ([1948] 2 K. B. 339); and to the case of Point of Ayr Collieries Ltd. v. Lloyd-George ((1943) 2 All E.R. 547).
In the case of Liversidge v. Anderson and anor. (1942) A.C. 206) the argument turned on the words used in the regulations, “If the Minister has reasonable cause to believe.” Viscount Maugham, referring to certain regulations where the word “satisfied” was used, said: “In these cases it is conceded that there is no recourse to the court provided, of course, that the Secretary of State acts in good faith.” Lord Atkin, who gave a dissenting judgment in that case, also referred to certain regulations where the word “satisfied” is used, in contrast to certain other regulations which used the words “reasonable cause.” As regards the former he said, “In all these cases it is plain that unlimited discretion is given to the Secretary of State assuming, as everyone does that he acts in good faith.” The same principle was reasserted by the English Court of Appeal in the post-war case of In re City of Plymouth (City Centre) Declaratory Order, 1946, Robinson v. Minister of Town and Country Planning ([1947] K. B. 702).
From these and other cases cited to me it seems clear that, as regards the Preventive Detention Act, 1958, the only matters that the Court can inquire into are matters relevant to the legality of the detention. In the case of Carltona Ltd. v. Commrs. of Works and ors.
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((1943) 2 All. E.R. 560 at p.564) there is the following passage in the judgment of Lord Greene M.R., “It has been decided as clearly as anything can be decided that, where a regulation of this kind commits to an executive authority the decision of what is necessary or expedient and that authority makes the decision, it is not competent to the Courts to investigate the grounds or the reasonableness of the decision in the absence of an allegation of bad faith. If it were not so it would mean that the Courts would be made responsible for carrying on the executive government of this country on these important matters. Parliament, which authorises this regulation, commits to the executive the discretion to decide, and with that discretion, if bona fide exercised, no court can interfere. All that the court can do is to see that the power which it is claimed to exercise is one which falls within the four corners of the powers given by the legislature and to see that these powers are exercised in good faith. Apart from that, the Courts have no power at all to inquire into the reasonableness, the policy, the sense, or any other aspect of the transaction.”
Examples of matters into which the Court can inquire and in which it could interfere are, therefore,
the bona fides of the Minister where this is impugned, the genuineness of the Detention Order itself, the identity of the applicant with the person referred to in the Order, the nationality of the applicant and, I would say, the overstepping of statutory limits by the Minister. Such matters as these are relevant to the legality of the detention (R. v. Home Secretary, ex parte Budd ((1942) 1 All E.R. 373).
In the application before me, challenges are made on the ground of:—
(1) bad faith on the part of the Government;
(2) identity of some of the applicants; and
(3) lack of jurisdiction, in that the grounds of detention show offences already committed, and therefore triable under the Criminal Code.
As regards the imputation of bad faith, the applicants point to what was said in the Debate in Parliament on the 3rd December, 1958. I do not think that the Hansard Report advances the matter. There were allegations made of plots of assassination planned by some members of the Opposition, and a threat that if the Opposition behaved irresponsibly, certain drastic Bills would be used against
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them. There was also an objection to the press-release of the 15th November, 1958, which referred to the fact that a number of the detainees had previous criminal convictions. No reference, however, was made to the particular convictions of any particular individual. In these circumstances, publication (for the reasons given in the press-release) of the fact that some of the detainees had previous convictions does not provide concrete evidence of bad faith on the part of the Government in arresting the men on the grounds alleged against them for their detention. The onus of proving bad faith – and it is exceedingly difficult to prove – is on the applicants. They allege that they have been arrested and detained, not for the reasons given by Government, but merely in order to suppress and silence the Opposition Party. On the evidence before me it is impossible to hold that this has been established. I did not consider any further affidavit, in this matter was required of the respondents, or, in any event, would have served any useful purpose.
Ten of the detainees say in affidavit ‘B’ that they have been wrongly described in the Detention Order. Thus, for example, one of the detainees “George Quarshie” alleges that he has been wrongly described in that his name is “George Awuley Tetteh.” The occupation and address are not challenged. So far as names are concerned, I know that in this country a person may have more than one group of names. There are also spelling variations. I have considered each of the alleged wrong descriptions, and in my view a wrongful description (if it be such) is immaterial – the crux of the matter is, rather, the identity of the persons concerned. I should require, in the circumstances here, more than a bare allegation of wrongful description in some particular or other before I would feel justified in going into the question of the fact of identification. I should myself have thought that, if these particular detainees intended a serious issue of wrong identification, they would have taken steps at once in accordance with section 2 of the Preventive Detention Act, or would have provided this Court with some material on which to work.
As regards the last point, it is true that certain of the grounds given for the detention show, or tend to show, recognisable criminal offences triable under the Criminal Code. These are related to a conspiracy, inter alia, to assassinate certain members of the Government, and to the discussion of formulation of plans for poisoning certain Ga adherents of the Convention People’s Party in Accra, for preparing to manufacture some explosives and for overthrowing the Government by force. I do not think it can be argued that such acts as these are not prejudicial to the security of the State. They may also be criminal offences, and indeed it is extremely difficult to think of
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any act under section 2(1)(e) of the Preventive Detention Act that would not constitute a criminal offence. It is obvious that it is not for the Court to say at what stage it is necessary for Government to step in, and to use its powers under the Preventive Detention Act. It is impossible in any event to say that the grounds given for detention are outside the scope of the Preventive Detention Act, as I have pointed out, however, the Courts are precluded from inquiring into those matters in respect of which the Governor-General states that he is satisfied, or into the grounds of satisfaction. All that the Court can go into are matters relevant to the legality of the detention.
DECISION
In view of the authorities cited, and for the reasons I have given, I must refuse the applications for a writ of habeas corpus.
