IN THE HIGH COURT, ACCRA 22ND DECEMBER, 1959. OLLENNU J.
IN RE A COMPLAINT TO POLICE BY BOTWE & MENSAH
AND
IN RE AN APPLICATION FOR MANDAMUS
Held:
(1) that there is no imperative duty upon a police officer to bring every person arrested without warrant before a Magistrate’s Court on a charge;
(2) that a duty is imposed upon the Police by sec. 17 of the Criminal Code to report to the Magistrate the cases of all persons arrested without warrant, whether admitted to bail or not. But this Section exists for the protection of the liberty of the subject, and does not impose on the Police a duty to charge all persons arrested without warrant;
(3) that a condition precedent to Mandamus is the applicant’s prior demand to the respondent, and the respondent’s refusal. What the applicant did demand (and what was refused) was the charging of Botwe and Mensah. What they now demanded was the “reporting” of their cases to a Magistrate. This had not been demanded, and had not been refused;
(4) that a further condition precedent to Mandamus is the existence of a legal right in the applicant. Sec.17 confers upon the applicants in this case no legal right to the charging by the Police of the arrested persons.
CASES REFERRED TO
(1) R. v. Guardians of Lewisham Union ([1897] 1 Q.B. 498);
(2) R. v. Twickenham Rent Tribunal. ex parte Dunn. ((1953) 2 All E.R. 734);
(3) R. v. Wilson & ors. ((1880) 43 L.T.560).
COUNSEL
Dr. J. B. Danquah for applicants.
Bing. Q.C., Attorney-General for respondents.
JUDGMENT OF OLLENNU J.
(His Lordship set out the facts, and continued:—)
Among the conditions precedent for the issue of Mandamus are the four set out in paragraph 7 of the statement of the applicants in support of their affidavit, namely:
(i) there must be a legal right to be enforced, the purpose of which cannot be enforced by any other legal remedy equally convenient, beneficial and appropriate;
(ii) there must have been a distinct demand and refusal to do the act;
(iii) the duty to be performed must be some public or quasi-public legal duty; and
(iv) it must appear that the order would be effective.
The arrests made by Police in pursuance of the complaints of the applicants were admittedly without warrant, and therefore the provisions of sections 16 and 17 of the Criminal Procedure Code apply:
(1) sub-section 1 of section 16 requires that where a person is so arrested the police officer in charge of the police station to which he is taken should enquire into the case, and if upon completion of the enquiry there is no sufficient reason to believe that he has committed any offence such person should be released forthwith;
(2) sub-section 2 provides that if the person so arrested has committed a crime, then he should either be taken before a Magistrate’s Court on a charge within twenty-four hours, or be granted bail to appear before such Court on a charge;
(3) sub-section 3 reads:-
“If, on a person being so taken into custody as aforesaid, it appears to the officer aforesaid that the enquiry into the case cannot be completed forthwith, he may release the said person on his entering into a bond, with or without sureties for a reasonable amount, to appear at such police station and at such times as are named in the bond, unless he previously receives notice in writing from the officer of police in charge of that police station that his attendance is not required, and any such bond may be enforced as if it were a bond conditional for the appearance of the said person before a Magistrate’s Court for the place in which the police station named in the bond is situate;”
(4) section 17 reads as follows:-
“Officers in charge of police stations shall report to the nearest Magistrate the cases of all persons arrested without warrant within the limits of their respective stations whether such persons have been admitted to bail or not.”
In my opinion, the proper construction to be placed upon sec. 16(3) is that where the enquiries cannot be completed forthwith the person arrested should be granted bail to report on a subsequent day or days for the enquiries to be continued, and that if (when the enquiry is completed on a subsequent date) the Police officer in charge should find that there is no sufficient reason to believe that the person has committed any offence, the officer in charge should at that date inform the person arrested in writing that his attendance under the bond is no longer required.
In other words sec. 16(1) gives the officer power on the very first day of the arrest of a person without warrant to decide not to take further steps in the complaint against the arrested person, while sec. 16(3) gives the officer power to take a similar decision on any subsequent date, so long as the person arrested has not been brought before a Magistrate’s Court on any charge arising out of the complaint upon which he was arrested. These provisions of section 16 show that there is no imperative duty upon a police officer to bring each and every single person arrested without warrant before a Magistrate’s Court on a charge. The power given to him to bring an arrested person before the Magistrate’s Court is only permissive and enabling, not obligatory or mandatory.
Sec. 16(2), then, imposes upon the officer-in-charge the duty where, in consequence of investigations held, he has formed the opinion that there is a prima facie case, either to take the person arrested without warrant before a Magistrate’s Court within 24 hours, or else to admit him to bail. Sec. 16(3) puts the officer-in-charge under the duty, where there is no time to complete the investigation forthwith, to admit to bail the person so arrested, the latter to report at stated periods. Bearing in mind that these provisions of the Ordinance are for the protection of the liberty of the subject, I am of the opinion that the duty imposed upon the police officer by section 17 (“to report to the nearest Magistrate the cases of all person arrested without warrant”) is mandatory, and that it applies not only
(1) to persons so arrested against whom as a result of enquiries made forthwith the Police have formed the opinion that there is a prima facie case, whether they are in custody, or are on police bail for Court, but also
(2) to persons who have been so arrested, and who are on police bail to report to the police station for enquiries to be made into the complaint against them.
Now to the conditions precedent upon which Mandamus should issue, and first it must be pointed out that all the conditions must be shown to exist together, otherwise Mandamus will not issue. I shall deal first with the 2nd condition. In Halsbury’s Laws of England, 3rd edition, volume II, page 106, paragraph 198, under the heading “Demand for performance must precede the application”, the principle is stated thus:
“As a general rule the order will not be granted unless the party complained of has known what it is he was required to do, so that he had the means of considering whether or not he should comply, and it must be shown by evidence that there was a distinct demand of that which the party seeking the Mandamus desired to enforce, and that that demand was met by a refusal.”
The first question is, What is the duty of the Police under section 17 of the Criminal Procedure Code which the applicants desire to enforce? The answer is, “To report to the nearest Magistrate the cases of people arrested without warrant and admitted to bail”. The next question is, Does the evidence before the Court show that there has been a distinct demand made by the applicants to the Police to perform that particular duty, and that that demand has been met with refusal? The answer is that the applicants have never demanded the performance of that duty. They demanded that the said Kwasi Botwe and Kwasi Mensah should be taken before a Magistrate and charged with certain offences, something fundamentally different from the reporting which they now seek to enforce. The Police have had no opportunity of considering the new demand, or of saying whether or not they would comply with it.
Next, the first of the conditions precedent (as set out above) is that there must exist a legal right, which must reside in the person who desires its enforcement (see Halsbury, 3rd edition, volume II, page 105, paragraph 196, and the cases there cited; see also Short and Mellor on Crown Office Practice (1908) edition, page 201.
In the case of Reg. v. Guardians of Lewisham Union ([1897] 1 Q.B. 498) a metropolitan district Board of Works applied for Mandamus to the Guardians of the Poor of the district, commanding them to enforce the provisions of the Vaccination Acts generally in their district, and particularly in certain special instances. The Board of Works were the sanitary authority in the district, and were charged by the Public Health (London) Act, 1891, with the duty of putting in force the powers vested in them relating to public health and local Government, some of which powers related to and included the prevention of infectious diseases, including small-pox. It was held that the Board of Works had no legal specific right to enforce the performance by the guardians of their duties under the Vaccination Acts, and therefore were not entitled to a Mandamus.
In the case of Reg. v. Twickenham Rent Tribunal. Ex parte Dunn. (1953) 2 A.E.R. 734), the applicant was wife of a tenant. Her husband had deserted her in the matrimonial home, which was rented premises subject to the provisions of the Rent Control Acts. She received maintenance of £500 from her husband upon an order of the High Court, and she paid the rent for the premises. She applied to the Rent Tribunal to fix a reasonable rent for the premises, as she felt the rent she was paying was more than she could afford. The Tribunal refused to make the assessment, whereupon she applied for Mandamus. It was held that the only person who could apply to the Tribunal to fix a reasonable rent for the premises was the tenant. The applicant was not the tenant of the premises; as a wife she could not be an agent of the husband, unless so authorised by the husband or except to pledge his credit for necessities. Mere payment of the rent by her did not clothe her with a legal right to the duty which she desired enforced, and Mandamus was refused.
Holding the view which I do, that section 17 of the Criminal Procedure Code is for the protection of the liberty of the subject, so that he should not be harassed unnecessarily by the Police, and so that if the Police think they have any case against a subject arrested without warrant they should bring him before the Court without delay, I think the whole object of the provisions would be defeated if those same provisions should clothe a complainant with the legal right to insist that the person who has been subject to arrest without warrant upon the former’s complaint must of necessity be dragged to Court and charged, even though, upon investigation of the complaint, the Police found no reasonable ground for believing that he had committed any offence.
Learned Counsel for the applicants seems to be of the opinion that Magistrates in this country take the place of Public Prosecutors in Britain. That opinion is an error. Magistrates are judicial officers; they do not institute, or direct, prosecution.
As to the 4th condition, Mandamus will not issue where it appears that it would be futile in its result. See Halsbury, 3rd edition, volume II. page 106, paragraph 199. Thus in the case of Reg. v. Wilson & ors. ((1880) 43 L.T. 560) Mandamus to command a vicar to fix a certain hour for the vestry meeting was refused because it would not prevent the vicar calling a meeting at any time he chose. As stated in the letter dated the 17th June, 1959, written by the Commissioner (C.I.D.), Ghana Police, to Dr. Danquah, the Police have already notified Kwasi Botwe and Kwasi Mensah, and in compliance with section 16 of the Criminal Procedure Code they may also have informed the persons arrested that they are no longer required to report to the Police Station on their bail bond. No useful purpose would be served by directing a Mandamus to the Police to make a report under section 17.
DECISION
This application must fail. It is accordingly refused, with costs fixed at 25 guineas.
