COURT OF APPEAL (FULL BENCH)
DATE: 3 APRIL 1967
BEFORE: AKUFO-ADDO C.J., OLLENNU, AZU CRABBE, APALOO AND LASSEY JJ.A.
CASES REFERRED TO
(1) Battersea Borough Council v. County of London Electricity Supply Co.,Ltd. [1913] 2 Ch. 248; 82
L.J.Ch. 500; 108 L.T. 938; 77 J.P. 325; 29 T.L.R. 561; 11 L.G.R. 1126, C.A.
(2) Bowditch v. Balchin (1850) 5 Exch. 378; 4 New Mag.Cas. 118; 19 L.J. Ex. 337; 15 L.T. (o.s.) 232;
14 J.P. 449.
(3) Barnard v. Gorman [1941] A.C. 378; [1941] 3 All E.R. 45; 110 L.J.K.B. 557; 165 L.T. 308; 105
J.P. 379; 57 T.L.R. 681; 39 L.G.R. 273, H.L.
(4) Liversidge v. Anderson [1942] A.C. 206; [1941] 3 All E.R. 338;110 L.J.K.B. 724; 116 L.T. 1; 58
T.L.R. 35; 85 S.J. 439, H.L.
(5) Greene v. Home Secretary [19421 A.C. 284; [1941] 3 All E.R.388; 111 L.J.K.B. 24; 166 L.T. 24;
58 T.L.R. 53; 85 S.J. 461, H.L.
(6) R. v. Home Secretary; Ex parte Budd [1942] 2 K.B. 14; [1942] 1 All E.R. 373; 111 L.J.K.B. 475;
166 L.T. 293; 58 T.L.R. 212; 86 S.J. 111, C.A.
(7) Okine, In re [1959] O.L.R. 1.
(8) Nakkuda Ali v. Jayaratne, [1951] A.C. 66; 66 T.L.R. (Pt. 2) 214; sub nom, Ali v. Jayaratne 95 S.J.
516, P.C.
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NATURE OF PROCEEDINGS
APPEAL from a ruling of the High Court. Accra, wherein Anterkyi J. granted the application of one B.for a writ of habeas corpus that freed his uncle A. from detention under N.L.C.D. 93. At issue was the right of the Attorney-General to issue any number of written consents for successive 28-day periods of detention. The facts are sufficiently stated in the judgment of the court.
COUNSEL
Victor Owusu, Attorney-General, (with him J. N. K. Taylor, Director of Public Prosecutions) for the appellant. Amofa for the respondent.
JUDGMENT OF AKUFO-ADDO C.J.
Akufo-Addo C.J. delivered the judgment of the court. This is an appeal by the General Officer Commanding the Ghana Armed Forces against an order of Anterkyi J. in the High Court, Accra, granting the respondents’ (Yusufu Iteriba Aminu’s) application for a writ of habeas corpus and ordering his release from custody. The appeal came before us on 3 March when after hearing counsel’s argument we allowed it, reversed the order of Anterkyi J. aforesaid and reserved our reasons for the judgment.
The respondent, a Nigerian national resident in Ghana, was arrested on 3 January 1967 by the army authorities on suspicion Of having committed the offence of stealing. The army authorities acted in pursuance of the provisions of the Law Enforcement (Powers of the Army) Decree, 1966 (N.L.C.D. 109), which gave to the army authorities the same powers of arrest and prosecution as are vested in the police under the Criminal Procedure Code, 1960 (Act 30), the Police Service Act, 1965 (Act 284), and the Public Order Act, 1961 (Act 58). On 4 January 1967, the Attorney-General gave his consent in writing for the detention of the respondent for a period of 28 days beginning from 4 January 1967. The Attorney-General was acting under the provisions of the Criminal Procedure Code (Amendment) Decree, 1966 (N.L.C.D. 93), which amended section 15 of the Criminal Procedure Code, 1960, by adding the following subsection thereto: “(5). Notwithstanding anything to the contrary, a person taken into custody without a warrant may, with the consent in writing of the Attorney-General, beheld in custody for a period of twenty-eight days or such other period as the Attorney-General may determine and the provisions of section 96 of this Code (relating to bail) shall not apply to a person so held.” The period of 28 days expired on 1 February 1967 and on that day the Attorney-General issued another consent in writing for the
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detention of the respondent for a further period of 28 days as from 1 February 1967. On 7 February 1967, the respondent, by his nephew, Yaya Aminu Braimah, applied to the High Court, Accra, for a writ of habeas corpus for the release of the respondent from custody on the ground that the Attorney-General had no power to give consent, once the respondent had completed the original 28 days in custody, for the further detention of the respondent. The respondent’s counsel contended that his ground was based on a true and proper construction of the provisions of N.L.C.D. 93 (i.e., section 15 (5) of the Criminal Procedure Code). The respondent’s case therefore was that his detention as from 1 February 1967 was unlawful. As already stated, Anterkyi J. accepted the respondent’s view of the law and ordered his release.
The basic point involved in this appeal, namely, the construction to be placed on the provisions ofN.L.C.D. 93, that is, section 15 (5) of Act 30, falls within a relatively small compass, and does not appear to present much difficulty. Indeed we did not have any difficulty in accepting the submission of the Attorney-General advanced in support of his right to issue any number of written consents for the detention of a suspected person as often as it became necessary to do so. The Attorney-General referred to section 10 (1) and (2) of the Interpretation Act, 1960 (C. A. 4), which are in substance a reproduction of section 32 (1) of the English Interpretation Act, 1889 (52 & 53 Vict., c. 63), and which is in the following terms:
“Where an Act passed after the commencement of this Act, confers a power or imposes a duty, then, unless the contrary intention appears, the power may be exercised and the duty shall be performed from time to time as occasion requires.”
He relied on the case of Battersea Borough Council v. County of London Electricity Supply Co., Ltd. [1913] 2 Ch. 248, C.A. This was a case in which the plaintiffs who were the highway authority for the metropolitan borough of Battersea applied for an injunction to restrain the defendants who were “an authorised undertaker” within the London Electric Supply Act, 1908 (8 Edw. 7, c. 57), from laying electric energy. The injunction was asked for on the ground that these two areas were, and had for many years, already been connected. The provision in the London Electric Supply Act, 1908, under which the defendants were operating (section 4 (2)) provided that, “an authorised undertaker . . . may . . . by means of electric mains make a connection between any two or more areas which that authorised undertaker . . . is authorised to supply . . .” It was
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held that the section did not authorise one connection only, but that connections might be made between two areas from time to time as required.
Although the decision in this case was based on the grammatical meaning of the relevant section of the London Electric Supply Act, 1908, and not strictly on the interpretation and application of section 32 (1) of the English Interpretation Act, 1889, aforesaid, it has generally been accepted as embodying the spirit of section 32 (1) of the Interpretation Act, 1889, and in this regard reference may be made to a footnote in Halsbury’s Laws of England (3rd ed.), Vol. 36 at p. 437 which says, “The purpose of this provision [i.e. section 32 (1) of the English Interpretation Act] was to overcome the inconvenience formerly caused by the doctrine that a statutory power is exhausted by its first exercise unless . . . a contrary intention can be discovered” and the Battersea County Council case is there cited in support. The words of section 10 of our Interpretation Act, 1960, following closely the wording of section 32 (1) of the English Act would seem to us to be plain enough to sustain the Attorney- General’s contention even without the aid of the decision in the Battersea County Council case which undoubtedly strengthens the case for the Attorney-General.
The respondent’s counsel’s contention that the exercise of the Attorney-General’s power “from time to time as occasion requires” can only refer to the exercise of the power in the case of a different person at a time and not to its repeated exercise in the case of the same person, seems to us to be too extravagant to merit any consideration.
The respondent’s counsel further contended that the Battersea County Council case was distinguishable from the instant case in that the case dealt with a private right whereas the instant case deals with the liberty of the citizen. On the question of the Battersea County Council case being one relating to a private right, it is enough to point out that the Interpretation Act, 1960, makes no distinction between what are private rights and what are not in the area covered by the Act. Section 1 of the Act provides that:
“1. Each provision of this Act applies to every enactment being-
(a) the Constitution, an Act (including this Act) of the Constituent Assembly or of the Parliamentof the Republic of Ghana,
(b) a legislative measure continued in force by the Constitution, or
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(c) an instrument made (directly or indirectly) under any such enactment, except insofar as the
contrary intention appears in the enactment.
(The emphasis is mine. The National Liberation Council in existing circumstances takes the place of the Parliament of the Republic of Ghana.) It may here be of interest to refer to section 39 of the English Interpretation Act, 1889, which by way of supplement defines an “Act’ in the following terms: In this Act the expression ‘Act” shall include a local and personal Act and a private Act.” From which it follows that the operation of N.L.C.D. 93 cannot be based on any presumed distinction between a so-called private right and a public right such as the right of the citizen to his liberty.
The further contention implicit in the submissions of the respondent’s counsel that in the instant case we are dealing with the liberty of the subject as opposed to the exercise of a private right and therefore somewhat different considerations should be applied in the view to be taken by the court of the exercise of the Attorney-General’s powers cannot be lightly dismissed as being irrelevant.
The fact that the liberty of the subject is concerned does of course place upon the court the obligation to give the words of the enactment their ordinary meaning: see Bowditch v. Balchin (1850) 5 Exch. 378;
Barnard v. Gorman [1941] 3 All E.R. 45, H.L. and Liversidge V. Anderson [1941] 3 All E.R. 338, H.L., but the actual operation of the powers created by the enactment does raise issues that go far beyond the mere matter of determining the meaning of the words of the enactment. It may be necessary at this stage to refer very briefly to the history of this piece of legislation. In September 1962, the Criminal Procedure (Amendment) (No.3) Act, 1962 (Act 139), was passed by Parliament which amended the Criminal Procedure Code, 1960 (Act 30), in the following terms:
“The Criminal Procedure Code, 1960 (Act 30) is hereby amended by the addition to subsection (2) of section 15 thereof of the following proviso— ‘Provided that any person taken into custody as aforesaid may, with the consent in writing of the Attorney-General, be held in such custody for a period of twenty-eight days or such other period as the Attorney-General may determine’.”
In the Memorandum that was published with the Bill in respect of the aforesaid Act, the government stated the following as the reasons and objects of the amendment:
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“Experience has shown that the period of twenty-four hours for which the police can detain a person to conduct investigations is rather too short. The object of this Bill is to provide that where circumstances demand the approval of the Attorney-General should be obtained for a person to be kept in custody for a period of twenty-eight days or more as specified by the Attorney-General whilst police investigations have not been completed.”
By N.L.C.D. 93 of October 1966, entitled Criminal Procedure Code (Amendment) Decree, 1966, the Criminal Procedure Code (Act 30), was amended.
“(a) by the repeal of the proviso to subsection (2) of section 15 thereof, and
(b) by the insertion immediately after subsection (4) of the said section 15 of the following subsection:-
‘(5) Notwithstanding anything to the contrary, a person taken into custody without a warrant may, with the consent in writing of the Attorney-General, be held in custody for a period oftwenty-eight days or such other period as the Attorney-General may determine and the provisions of section 96 of this Code (relating to bail) shall not apply to a person so held’.”
The legislation embodied in the new subsection (5) is in substantially the same terms as those of the repealed proviso to subsection (2), the only change being its transposition from being a proviso to the status of a subsection. The reason for the transposition is not apparent on the face of the legislation. It is, however, reasonably clear that the National Liberation Council, which since it came into power has repealed a number of laws passed by the old regime on the ground either that they are obnoxious or that they offend against the accepted principles of the rule of law, considers, by re-enacting the law in question, that the circumstances which called for the original enactment in 1962 still prevail and that the law is still necessary for the purposes mentioned in the memorandum to the original Bill to which reference has already been made. Whatever these circumstances were, and presumably still are, they cannot be held to be so extraordinary as to clothe the enactment with the character of “emergencyBlegislation.” Indeed the enactment does not pretend to be emergency legislation or anything of that nature. Nor does it confer upon the executive officers concerned an unlimited discretion in the exercise of the powers thereunder. It is no more than an extension, albeit a very wide extension, of the law whichBrequires that a person arrested on suspicion of having committed a crime must be produced before a court within 24 hours of his arrest.
[p.199] of [1967] GLR 192
It is therefore part of the provisions relating to the day to day administration of the criminal law and it is strictly in this context that the issues raised by its operation have to be considered. Although no open reliance was placed on the well-known cases dealing with executive encroachment on the liberty of the subject, i.e. cases like Liversidge v. Anderson [1941] 3 All E. R. 338, H.L.; Greene v. Home Secretary [1941] 3 All E. R. 388, H. L.; R. v. Home Secretary; Ex parte Budd [1942] 1 All E.R. 373, C.A. and the Ghana case of In re Okine [1959] G.L.R. 1 (and the cases cited therein) there were utterances in the course of the hearing which sounded like faint echoes of the principles canvassed in these cases. These cases arose out of the operation of some emergency legislation or out of matters in respect of which some member of the executive had been vested with unlimited discretionary power, and a common feature of the decisions contained therein was the refusal of the court, barring proof of mala fides, to go behind the exercise of executive discretion and to accept as closing the matter, a statement by the officer concerned either that he had “reasonable cause to believe” in the existence of a certain state of affairs affecting the exercise of his powers or that he was “satisfied” that it was necessary to exercise his discretionary powers. The matters involved in these cases were not matters relating to the detection, investigation, prosecution and punishment of breaches of the law ordinarily known to the criminal law; and for that or some other reason an examination of the executive powers relating thereto did not admit of any objective tests, it being sufficient to accept the subjective appraisal by the officer concerned of the circumstances justifying the exercise of the powers involved. Apart, however, from the fact that the dissenting view of Lord Atkin in Liversidge v. Anderson (supra) has come to be accepted as a correct statement of the strict common law doctrine of reasonable cause (see Nakkuda Ali v. Jayaratne [1951] A.C. 66 at p. 71, P.C.), it is, we think, obvious that the principles canvassed in these cases can have no application to the exercise by the executive officers concerned of the powers vested in them by the enactment under consideration.
As has already been mentioned we are here dealing with an enactment that makes additional provisions for the investigation and prosecution of crimes under the Criminal Code, and the basic principles governing such investigation and prosecution have not been altered in any way. A fundamental principle of the administration of the criminal law is that whoever alleges that a citizen has committed a crime orhas deserved to suffer a deprivation of his
[p.200] of [1967] GLR 192
liberty must prove the allegation to the satisfaction of a duly constituted court. It follows that if in the progress from arrest to conviction the legality of any step taken is challenged, the officers concerned must be prepared to lay bare the facts and the law which justify them in taking that step.
The courts in Ghana have a duty to safeguard the liberty of the citizen and in any matter affecting that liberty the actions of the executive and its officers are subject to the supervision and control of the courts on habeas corpus (see Halsbury’s Laws of England (3rd ed.), Vol. II. p. 25). If, therefore, a citizen who is detained under the provisions of N.L.C.D. 93 applies to the court for a writ of habeas corpus the onus is upon the executive officers concerned to satisfy the court by all the legal means by which facts are judicially established that the citizen is being detained solely for the purpose of executing the object for which the power of detention is conferred on them. The object is stated quite clearly in the memorandum to the original Bill to which we were referred by the Attorney-General. For that reason when the executive officer concerned is ordered by the court, on an application for habeas corpus, to file a statement in the nature of a return under section 2 of the Habeas Corpus Act, 1964 (Act 244) (which in this country regulates the exercise of the citizen’s common law right to the writ), it shall not be an acceptable return merely to exhibit the Attorney-General’s written consent for the citizen’s detention. The return must go further and state clearly facts from which the object of the detention can reasonably be ascertained, for the court as a tribunal of facts will have to be satisfied of the existence of the facts justifying the detention. The facts must establish the existence of an inquiry being carried on and there must be facts showing reasons for a protracted inquiry such as the complexity of the inquiry or other matters causing delay; it must also be shown that it is not safe that the person detained be at large while the inquiry proceeds. And in this, unlike the cases to which reference has been made earlier, the existence of the bona fides of the officer concerned is wholly immaterial although the proved absence of bona fides will more readily earn the detained applicant his release. Official good faith cannot in the administration of the criminal law be a substitute for evidence and proof.
The court in the execution of its duty to protect the citizen’s liberty always proceeds on the well-known principle, at any rate as acknowledged in democratic countries, of the primary necessity in the administration of the law to establish a healthy balance between the need to protect the community against crime and the need to protect individual citizens against abuse of executive power. Subject to the limits imposed on this twofold protection by the establishment and [p.201] of [1967] GLR 192
maintenance of the requisite balance, the scales are to be held evenly, at any rate in normal times, between the community, that is the State and the individual and there can be no question of “leaning over backward,” so to speak, to favour the State at the expense of the citizen or to favour the citizen at the expense of the community. And the courts’ vigilance in protecting the citizen against any encroachments on his liberty by the executive becomes meaningful and real only when pursued on the basis of this principle.
Naturally any extension of the powers of the executive that tends to impinge upon the liberty of the citizen is viewed with the gravest suspicion, for such extended powers are in their operation fraught with serious dangers. In this regard the Attorney-General did assure the court at the hearing that so long as he remained in that office the provisions of N.L.C.D. 93 would be resorted to only when there was a real need for doing so and strictly in furtherance of the object intended to be achieved by that enactment. We have no reason whatever to doubt the Attorney-General’s assurances or his integrity or his devotion to thecourse of legal propriety, and if in this judgment we appear to be somewhat at pains to set the limits to which the courts will tolerate the use of the powers conferred by the Decree in question, it is only because it is not safe, in the nature of things human, to erect principles round the personality and character of any particular person.
The courts are not unaware of the complexity and the large number of the matters that in prevailing circumstances call for investigation by police and other officers and the heavy burden on their efforts and time that those entail, but the courts will be failing in their duty if for that reason alone they should in any way relax their vigilance in protecting individual liberty. We think by the time a police or other officer decides to arrest a man on suspicion of having committed a crime one can safely say that that decision is based on material which properly engenders the suspicion. For that reason further investigation, if proceeded with, with due diligence and appropriate competence, should not be protracted unduly. It is necessary therefore to stress the point that the mere fact that the enactment under consideration does empower the Attorney-General to issue any number of written consents for the detention of an arrested person shall not be taken to constitute a carte-blanche for the officers of law and order to disregard the need for the propriety in the administration of the criminal law. So to allow the law to be applied will be to create a premium on cultivated disregard on the part of officialdom for the existence of the citizen’s rights which may ultimately lead to incompetence and callousness in the investigation and prosecution ofBcrimes. [p.202] of [1967] GLR 192
We allowed the appeal because we were satisfied that the inquiry into the matters relating to the arrest and detention of the said Yusufu Iteriba Aminu was complex enough to require for its completion a longer time than 28 days. Indeed the respondent’s counsel admitted to us quite frankly that inquiries were still proceeding. We were also satisfied that it was not safe that the said Yusufu Iteriba Aminu be at large while the inquiries were being conducted.BWe would like in conclusion to say that however necessary the enactment under consideration is, in the light of existing circumstances, it does constitute a very wide departure from the accepted principles of the administration of the criminal law, and it is easily susceptible to abuse as indeed its administration under the old regime has proved. Moreover its historical association with the old regime is not likely to engender unqualified public confidence in the undoubted efforts of the present government to undo the injustices of the old regime. For these reasons we express the hope that an early consideration will be given to its removal from the statute book.
DECISION
Appeal allowed.
T.G.K
