HIGH COURT, SUNYANI
Date: 8 NOVEMBER 1974
OSEI-HWERE J
CASES REFERRED TO
(1) Republic v. General Officer Commanding Ghana Army; Ex parte Braimah, Supreme Court, Cyclostyled Judgments (Civil) January-December 1967, p. 42; digested sub nom. General Officer Commanding Ghana Army v. Republic; Ex parte Braimah in (1968) C.C. 81.
(2) Ashong v. Ashong, Court of Appeal, 13 March 1967, unreported; digested in (1968) C.C. 26.
NATURE OF PROCEEDINGS
APPLICATION for writ of habeas corpus ad subjiciendum under Order 59, r. 9 of L.N. 140A of 1954.
COUNSEL
Afrifa for the applicants.
Agbanu, Senior State Attorney, for the respondents.
JUDGMENT OF OSEI-HWERE J.
On 18 October 1974 the applicants, by their counsel, moved the court on an ex parte motion praying for leave to issue a writ of habeas corpus ad subjiciendum against the Commanding Officer of the Third Battalion of Infantry, Liberation Barracks, Sunyani. The motion was granted and an order was made for the writ to issue forthwith against the Commanding Officer of the Third Battalion of Infantry, and made returnable on Monday, 21 October 1974. The writ was duly served on the Commanding Officer through his adjutant on that same 18 October 1974. On 21 October 1974 the Commanding Officer failed to produce the bodies of the applicants and also to make any return to the writ. After some behind-the-scene consultation with the Commanding Officer which failed to get his obedience to the writ the application was adjourned to 4 November 1974. Meanwhile the Commanding Officer through his adjutant, swore to an affidavit in which he sought to explain his disobedience to the writ and also the cause of the arrest of the applicants. The affidavit further challenged the jurisdiction of the court to inquire into the detention of the applicants. Some further affidavits were sworn on behalf of the applicants challenging the matters deposed to in the respondent’s affidavit, especially where he averred that the applicants were not in military custody at the Liberation Barracks.
At the hearing on 4 November 1974 the respondent’s counsel argued that the application should be dismissed in limine as Order 59, r. 9 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), under which the application is brought confers no right in the applicants to apply for the writ. The application, it was argued, ought to have been brought under the Habeas Corpus Act, 1964 (Act 244). Again, counsel
[p.61] of [1975] 1 GLR 59
submitted that as the respondent is subservient to superior orders the proper person against whom the writ could issue is the General Officer Commanding the Ghana Army. Counsel, to support his argument, referred to Republic v. General Officer Commanding Ghana Army; Ex parte Braimah, Supreme Court, Cyclostyled Judgments (Civil), January-December, 1967, p. 42.
It is indeed recognised that the citizen’s common law right to the writ of habeas corpus in Ghana is now regulated by the Habeas Corpus Act, 1964 (Act 244): see Braimah’s case (supra) at p. 49. All such applications must, therefore be brought under this Act. This is particularly so because, apart from the Act providing a remedy to secure a citizen from unlawful detention, it lays down its own procedure. In the instant application the applicants avowedly came to court under Order 59, r. 9 of the Supreme [High] Court (Civil Procedure) Rules, 1954.
Counsel for the applicants has, indeed, asked the court to consider whether the applicants have the right to come to court at all for the writ of habeas corpus. He again argued that as habeas corpus is a common law right it cannot be abrogated by statute unless it is expressly excluded by the statute. The applicants can, of course, come to court if they can establish that there exists some legal right to do so. They rely on the Rules of Court, which only regulate practice and procedure, as their authority unmindful of Act 244, the special enactment which confers jurisdiction. If I may borrow the words of Amissah J.A. in Ashong v. Ashong, Court of Appeal, 13 March 1967, unreported; digested in (1968) C.C. 26, namely: “The extent of a court’s jurisdiction is a fundamental matter which cannot be characterised as a matter of practice or procedure.”
It is for the foregoing reasons that I have to uphold the argument of the respondents’ counsel and hold that the application is misconceived. I accordingly dismiss it with liberty to re-apply.
DECISION
Application dismissed with liberty to re-apply.
S. Y. B.-B.
