HIGH COURT, SUNYANI
Date: 19 NOVEMBER 1974
OSEI-HWERE J
CASES REFERRED TO
(1) Nolan v. Clifford (1904) 1 C.L.R. 429.
(2) R v. Griffith (1844) 9 J.P. 23.
(3) Re McMurrer (1907)2 E.L.R. 436.
(4) Republic v. General Officer Commanding Ghana Army; Exparte Braimah, Court of Appeal,Cyclostyled Judgments (Civil) January-December 1967, p.42; digested in (1968) C.C. 81.
(5) Bushell’s Case (1670) Vaugh. 135; Freem.K.B.1; 1 Mod. Rep. 119; T.Jo. 13; 124 E.R. 1006.
(6) Viner’s Case (1675) 1 Freem. K.B. 522; 89 E.R. 392.
(7) R. v. Winton (1792) 5 Term. Rep. 89; 101 E.R. 51.
(8) R. v. Barnado (1889) 23 Q.B.D. 305; 58 L.J.Q.B. 553; 61 L.T. 547; 54 J.P. 132; 37 W.R. 789; 5 T.L.R. 673, C.A.
(9) R. v. Holmes (Chomicki) (1932) 3 W.W.R. 76.
(10) Warman’s Case (1778)2 Wm.Bl. 1204; 96 E.R. 709.
NATURE OF PROCEEDINGS
APPLICATION for a writ of habeas corpus ad subjiciendum under the Habeas Corpus Act, 1964 (Act 244). The facts are fully stated in the ruling.
COUNSEL
Afrifa for the applicants
Agbanu, Senior State Attorney, for the respondent.
| [p.342] of [1974] 2 GLR 340 | ||
| JUDGMENT OF OSEI-HWERE J. | ||
| Upon an application made to the court under the Habeas Corpus Act, 1964 (Act 244), on 8 November 1974, I ordered that the Commanding Officer of the Third Battalion of Infantry, Ghana Army, Sunyani, do produce the bodies of the applicants before this court on Monday, 11 November 1974 and I further ordered that the said Commanding Officer should submit a report in writing stating the grounds for the detention of the applicants. By Monday, 11 November 1974, my orders had not been served on the respondent and so the application was adjourned to 13 November 1974. The matters which were put before the court upon which I made those orders are contained in an affidavit sworn to by one Samuel Adusei Abebrese, the salient portions of which are as follows: | ||
| “3. | That on 12 October 1974, one Captain Braimah of the Third Battalion of Infantry, Sunyani, caused | |
| the arrest of Bernard Kwaku who has since the said date been detained at the Liberation Barracks of the Third Battalion of Infantry, Sunyani. | ||
| 4. | That the alleged cause for Mr. Bernard Kwaku’s said arrest was that the custom officials in charge of | |
| Ghana/Ivory Coast Border near Dormaa-Ahenkro erred in their assessment of the proper customs duties payable on quantities of goods v12 leather sheets which Mr. Kwaku had purchased from Ivory Coast and was returning to Ghana with same and thereby allowing Mr. Kwaku to pay lesser customs duties. | ||
| 5. | That although Mr. Kwaku has been in detention as aforesaid since his arrest, neither Captain Braimah | |
| nor any other person has formally preferred any charges against him. | ||
| 6. | That following this unlawful detention, Joseph Bright Owusu-Ansah did on 17 October 1974 apply to | |
| the High Court, Sunyani, for leave to issue a writ of habeas corpus against Captain Braimah for the immediate release of Mr. Kwaku. The High Court, presided over by Osei-Hwere J., granted the said order and further ordered the body of Mr. Kwaku to be produced by 9.00 a.m. of 18 October 1974. | ||
| 7. | That when Captain Braimah was served with the order of the High Court as aforesaid, the said | |
| Captain Braimah in company with four other armed soldiers arrested Joseph Bright Owusu-Ansah on midnight of 17 October 1974, at the Sunyani Asomdwe Hotel and escorted the said Owusu-Ansah to the Liberation Barracks of the Third Battalion of Infantry, Sunyani, where the said Owusu-Ansah has since been detained. | ||
| 8. | That on 18 October 1974, the said Captain Braimah failed to comply with the High Court order as | |
| stated above, consequently, a bench warrant was issued by the High Court for the arrest of Captain Braimah. | ||
| 9. | That both Bernard Kwaku and Joseph Owusu-Ansah are at present being held in military custody at | |
| the Liberation Barracks of the Third Battalion of Infantry, Sunyani.” | ||
| [p.343] of [1974] 2 GLR 340 | ||
When the application came to be heard on 13 November 1974 the respondent failed to produce the bodies of the applicants as ordered. He, however, submitted a report in exculpation of his disobedience to the court’s order. The report is as follows:
“I, Lieutenant Jasper Kofi Ahadzi, Adjutant, Third Battalion of Infantry Ghana Army, Sunyani on the authority of the Commanding Officer, Third Battalion of Infantry Ghana Army and the respondent herein in obedience to the writ herewith do certify and return:
| 1. | That the respondent his officers and men had orders from their superior officers to arrest the |
| applicants. | |
| 2. | That on their apprehension the applicants were despatched to the Headquarters of the Ghana Army, |
| Accra to the superior officers from whom the orders emanated. | |
| 3. | That the respondent takes orders from his superior officers but he does not give them orders. |
| 4. | That it is not true that the Commanding Officer is detaining the applicants. |
| 5. | That the applicants were not even in the custody of the respondent when the writ was issued on 8 |
| November 1974 much less on 11 November 1974 when it was served on the respondent. | |
| 6. | That it is not therefore possible for the respondent to whom the writ is directed to produce the body of |
| the applicants. | |
| 7. | That the respondent is therefore unable to obey the writ.” |
Arguing in support of the return to the writ, the senior state attorney (who appeared for the respondent) contended, inter alia, that the Habeas Corpus Act, 1964 (Act 244), is concerned with unlawful detention and not with unlawful arrest and also that the named respondent should be the person having custody of the applicants. He submitted that as at the time the application to this court was made the applicants were not in the custody of the respondent he cannot be called upon to produce their bodies. The Army Headquarters in Accra are holding them and the application should have been directed to that end. The respondent, it was argued, had superior orders, which he could not question, to arrest the applicants and after he had carried out the orders he despatched them to the Army Headquarters in Accra upon the same orders. The court was also referred to section 4(1) of Act 244 and it was argued that as the bodies of the applicants had not been produced the court cannot order their release as such an order will be futile.
Counsel for the applicants, in his turn, also argued for the quashing of the return to the writ because it is evasive and ambiguous and lacks sufficient particularity. The return does not disclose under what authority the applicants were arrested, when they were allegedly despatched to Accra and into whose custody they were despatched. Counsel also submitted that it is no defence before any court of law to say that one took orders from his superiors. On the contention that because the bodies have not been produced the court’s hands must be tied, counsel argued that non-production of the bodies must in no way deter the court from ordering
[p.344] of [1974] 2 GLR 340
their release if satisfied that the return is bad. Counsel argued that Act 244 is only intended to guarantee the common law right to habeas corpus. In so far as the Act is inconsistent with the common law the Act must prevail. Under the common law, counsel argued, it is a good return where the respondent satisfies the court that the applicant is not in custody. The Act, which is a very short one, is silent on many matters. It is silent on what constitutes a good return; it is also silent on what should happen where the respondent fails to obey the order. Where the Act is silent then it should be supplemented by the common law. The argument, therefore, that the court must only look within the four corners of the statute (Act 244) cannot, according to counsel, be sustained.
It is well to remind ourselves that the Habeas Corpus Act, 1964, is described as “An Act to consolidate with amendments the law relating to applications for habeas corpus”. As pointed out in Craies on Statute Law (6th ed.), p. 362, the courts will lean against any presumption that a consolidation Act was intended to alter the common law. In the Australian case of Nolan v. Clifford (1904) 1 C.L.R. 429, Griffith C.J. speaking of the Crimes Act, 1900 (No.40), of New South Wales, said at p.447 that:
“This is described to be an Act to consolidate the Statutes relating to Criminal law. There is nothing to indicate that the legislature intended to make any substantial alteration in the law. It is entitled an Act to consolidate the Statutes. There is nothing to suggest that they intended to make an important alteration in the common law on a matter materially affecting the liberty of the subject.”
I quite agree, therefore, with the applicants’ counsel that where the Act is silent the common law rule relating to the application for habeas corpus should be applied. Section 4(1) of Act 244 which deals with the court’s power to release the person detained from illegal custody provides as follows:
“The High Court shall, upon the body of the person detained being produced before it and after giving the person in whose custody he is detained an opportunity of justifying the detention, order the release of the person detained unless satisfied that the detention is in accordance with law.”
It is from the above provision that counsel for the respondent has contended that the production of the body is a sine qua non to any order for release. There is no doubt that the party who has been detained must be present in court at the hearing of the cause unless his presence has been dispensed with by consent. In R. v. Griffith (1844) 9 J.P. 23 the prisoner applied for a writ of habeas corpus and the court, on granting the writ, gave leave for the matter to be disposed of without bringing up the prisoner, if the consent of all the parties interested could be obtained but not otherwise. The rationale, as stated in the Canadian case of Re McMurrer (1907) 2 E.L.R. 436, is that a prisoner has a right to be present and to hear why it is alleged that he should be detained. Where the person detaining the applicant is contumacious the appropriate remedy is to apply
[p.345] of [1974] 2 GLR 340
for his attachment. In this application counsel for the applicants is saying that although the respondent has wilfully disobeyed the order of the court to produce the applicants he will be satisfied by this court’s order that the applicants be discharged forthwith from their detention as he knows how he can secure their release. I do not myself see what difficulties there can be in the applicants’ way if the court were disposed to order their release. As recognized before the court can, in exceptional circumstances, dispense with the appearance of the prisoner in court if the consent of all parties interested could be obtained. Here the only parties interested in the appearance of the applicants are the applicants themselves; and as their counsel makes no bones of their absence I do not think that the court should be muzzled.
In Republic v. General Officer Commanding Ghana Army; Ex parte Braimah, Court of Appeal, Cyclostyled Judgments (Civil), January-December 1967, 42 at p.49, the Court of Appeal re-echoed the power of habeas corpus as follows:
“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.”
Habeas corpus therefore, is the greatest bequest made to us by the common law in ensuring the liberty of the citizen. This bequest has now been enshrined in our treasured charter for all times, viz. the Habeas Corpus Act, 1964. In the celebrated Bushell’s Case (1670) Vaugh. 135 it was laid down at pp. 136-137 that:
“The writ of habeas corpus is now the most usual remedy by which a man is restored again to his liberty, if he have been against law deprived of it.
Therefore the writ commands the day, and the cause of the caption and detaining of the prisoner to be certified upon the return, which if not done, the Court cannot possibly judge whether the cause of the commitment and detainer be according to law, or against it.”
The cause of the imprisonment, it was further laid down ought, by the return, to appear as specifically and certainly to the judges of the return as it did appear to the court or person authorised to commit; else the return is insufficient. It is for the above reason that the respondent is bound to justify the detention under section 4 (1) of Act 244. In justifying the detention counsel for the respondent added nothing very new but argued around the matters certified in the respondent’s return which merely stated that the applicants were arrested by the respondent on superior orders, that on their apprehension he despatched them to the Headquarters of the Ghana Army and that the applicants were not in his custody when the writ was issued. If any return were to be declared bad because it combined in itself evasiveness and insufficiency of particulars this is one par excellence.
[p.346] of [1974] 2 GLR 340
It is trite law that an attachment may be granted for making an insufficient return to the writ of habeas corpus. If the respondent is unable to produce the body in court as ordered, the return must be unequivocal. Therefore in Viner’s Case (1675) 1 Freem. K.B. 522 it was held that a return to a pluries habeas corpus denying the detention at the time of or since the service of the pluries writ is bad, because it does not answer to the time of the coming of the first habeas corpus. So too in R. v. Winton (1792) 5 Term. Rep. 89 a return to a habeas corpus to the effect that, “I had not at the time of receiving this writ, nor have I since had the body of A.B. detained in my custody, so that I could not have her . . ..” was held to be a bad return and an attachment would be granted against the party who made it. Again in R. v. Barnado (1889) 23 Q.B.D. 305,C.A. to a writ of habeas corpus issued at the instance of the parent of a child, which had been wrongfully detained by the defendant, a return was made by the defendant to the effect that as he had, before the issuing of the writ, parted with the custody of the child so detained by him to another person who had taken her out of the jurisdiction, it was impossible for him to obey the writ it was held: (1) that it was no excuse for non-compliance with the writ that the defendant had wrongfully handed over the child to another person, and that the return was bad; and (2) that an attachment must issue against the defendant for disobedience to the writ. This line of cases may, however, be contrasted with the Canadian case of R. v. Holmes (Chomicki) (1932) 3 W.W.R. 76 where upon the return to a writ of habeas corpus directed to one F., a certain officer of the Royal Canadian Mounted Police, it was shown that, in pursuance of an order addressed to the said officer by the Minister of Immigration and Colonisation, the prisoner in question had been duly arrested and proceeded against under the Immigration Act, R.S.C. 1929,and had thereupon been sent under escort from Winnipeg to the custody of the chief immigration officer of Halifax, and was beyond the control of F. It was held that the return made by F. was a sufficient answer to the writ.
R v. Holmes (supra) accentuates what the return must contain where the respondent’s plea is that he has parted with the body at the time when the writ was issued. He must,in the first place, disclose under what legal authority he caused the arrest of the applicant and, secondly, he must also disclose his legal authority for parting with the body of the applicant elsewhere. The learned counsel for the respondent has, indeed, argued that Act 244 deals with unlawful detention and not with unlawful arrest. With the greatest respect to him I just cannot see where one can draw the line of difference between one and the other. The courts have never been inhibited from examining from the return to the writ the justification for the arrest. In Warman;s Case (1778) 2 Wm. B1. 1204 it was laid down that the return to a habeas corpus must answer the taking, as well as the detaining. Indeed, as noted before in Bushell’s Case “. . . the writ commands the day, and the cause of the caption . . .”
The respondent is saying, by his return that the applicants were arrested under superior orders he received. The nature of the orders received is shrouded in mystery. It may be well to remind ourselves that respondent
[p.347] of [1974] 2 GLR 340
superior, except in extreme cases of necessity, is never a good defence. In other words one cannot take cover for his acts of illegality under the shade of superior orders. It is the court’s duty, if the caption and detention can be justified, to know the cause for them. The court is not unaware of the powers vested in the Army authorities to effect arrest. The National Redemption Council, in its beneficence, did not pretend by the Armed Forces (Special Powers) Decree, 1973 (N.R.C.D. 236), to confer power of arrest to the Army carte blanche. Their power is certainly circumscribed and it is by no means higher than the power conferred on the police to arrest for crime and to investigate crime.
Having demonstrated that the return to the writ is wholly unacceptable it now only remains for me to remark that it is very unfortunate that the respondent, whom I personally hold in very high esteem, should somehow be persuaded to show such cultivated disregard for the authority of the court. From the history of this application (which is well known to the parties and their counsel) a Captain Braimah displayed an utter disregard and contempt for the court when, as alleged, he caused the arrest of the second applicant merely because he had sworn to an affidavit in support of an application for habeas corpus. For some weeks the application for habeas corpus had been oscillating before this court. From the respondent’s return it is clear when the former proceedings were before the court he caused the removal of the applicants to Accra. Indeed, since 17 October 1974 when the first application for habeas corpus was brought, there had been no gap in counsel’s application for the issue of the writ. On 8 November 1974 when the applicants were thrown out of court because they were not properly before the court they were given liberty to apply. The respondent knew, or he ought to have known, that that was not the end of the matter. It is clear from all the circumstances that the supposed despatch of the applicants to Accra was done mala fides in an obvious attempt to defeat this application. Counsel for the applicants, fortunately has no interest in the punitive aspect of this application. I am satisfied that the respondent has totally failed to justify the detention of the applicants and I accordingly quash his return and order the immediate release of the applicants from custody.
DECISION
Application granted.
Order accordingly.
S.Y.B.-B.
