Following the release of Mohammed Abdul Rahim Baba Salifa on the order of the High Court in the Ex Parte Salifa (no 1),[2] the Special Branch of the Police Service rearrested him. This time, he was accused of subversion.
His father subsequently filed a writ of habeas corpus ad subjiciendum and prayed the Court to have his son released.
On behalf of the applicant, the counsel contended that the decree submitted by the Attorney-General upon which the boy was detained did not qualify as an NLC decree.
He argued that the said decree was not numbered and it was also not published. And this is contrary to the provisions of paragraph 3 of the Proclamation for the Administration of Ghana as amended by NLCD 73, paragraph 16(a).
He argued that the NLC had unlimited power but chose to put restrictions on itself which must be complied with.
The Attorney-General also contended that the decree was signed by the chairman of NLC and that made it valid. He further argued that numbering of a decree related only to decrees which were being published and could not be taken to refer to any decree which was not published.
- Whether or not a person can be rearrested after he had been released on habeas corpus?
- Whether or not the police can arrest a person without a warrant?
- Whether or not the decree was valid?
- A person is not privileged from arrest after released on habeas corpus.
- The police can arrest a person without a warrant.
- The decree was valid.
A person who is released from unlawful custody can be rearrested on a different charge. The charge for the first arrest was unknown but the police gave suspected subversion as the charge on which the boy was rearrested. A release on habeas corpus does not immune a person from a subsequent arrest on another charge.
In matters such as subversion, the police can arrest a person without or with warrant. In any event there are authorities to support the proposition that the police have the right to arrest without a warrant a person who is suspected of having committed or being about to commit an offence. The police are expected by the public to pursue wrongdoers with energy and initiative. To this end, the arrest without a warrant under the circumstance was not unlawful.
Further, the Court took the view that a decree may come into effect on a date specified in the body of the decree or on the date of publication. That is, a decree may be retrospective or progressive.
Looking at the wording of paragraph 3 of the Proclamation decree, a decree can be made and become operative before steps are taken to have it published. And it is at the point of publication that the numbering becomes relevant.
Therefore, the document (no 13) has effect even though it is not published since it has a retrospective effect. There is nothing that shows that the document will not be published.
The decree that sought to detain the boy was not unlawful. And the arrest on a different charge without a warrant is also lawful.
[1] Republic v. Director of Special Branch; Ex Parte Salifa [1968] GLR 646-666
