REPUBLIC vs. DIRECTOR OF PRISONS; EX PARTE SALIFA [1968] GLR 630

NATURE OF PROCEEDINGS

APPLICATION for an order of habeas corpus to secure the release of a person detained in prison upon the authority of a purported Decree which, although signed, was neither published nor numbered. The facts are fully set out in the ruling.

COUNSEL

John Lynes (with him C. K. Amoah) for the applicant.

K. Gyeke-Dako, Principal State Attorney (with him I. Ahlijah, State Attorney), for the respondent.

JUDGMENT OF ANTERKYI J.

This is a very serious matter, as, in it, the liberty of the subject is concerned. In it, the question legally end interestingly arising is not the querela inofficiosi testamenti – the plaint of the unduteous will – in Roman law, but, as it may be aptly put, the plaint of an allegedly unnumbered enactment seeking room amidst the enactments already grounded firm and deep in their serially numbered seats in the statute book. In the long legally cherished armoury of the liberty of the subject, the ultimate finding may, therefore, either be welcomed with an orgy of parties, with the accompaniment of, as the poet Milton would have put it, “a sevenfold chorus of halleluias and harping symphonies,” be told or off with

[p.633] of [1968] GLR 630 wailing and gnashing of teeth, in that armoury. From the above preface, it may be stated that the way for this finding may be weary, dark and gloomy, but may be dimly seen as through a glass darkly.

Upon an application ex parte filed on 25 June 1968 by one Alhaji Mohammed Saalif of Accra, the father of one Mohammed Abdul Rahim Baba Salifa, praying for an order for habeas corpus directed against the Director of Prisons and the Director of the Special Branch for the immediate release of his son, Salifa, this court, on 27 June 1968, after hearing the arguments of counsel for the applicant and after scrutinising the affidavit and the relevant documents filed in support of the application, did make an order ex parte, bearing in mind an averment in the affidavit that the person, allegedly unlawfully detained, was an infant of about eighteen. And upon a notice of motion filed on 29 June 1968 for hearing on 2 July 1968, and in compliance with the mandatory directions contained in the order, the Director of Prisons made a return thereto by an affidavit sworn to and filed at 3.00 p.m. on 1 July 1968, annexing to it a document purporting to be a National Liberation Council Decree as the reason for the detention of the alleged infant. The body of the affidavit states:

“I, Jacob Ayayi Ajavon make oath and say as follows:

(1) That I am the Director of Prisons, Accra, and the respondent herein.

(2) That the writ of habeas corpus together with the affidavit of Alhaji Mohammed Salifa was served on me at 12.30 p.m. Monday, 1 July 1968.

(3) That by the National Liberation Council (Protective Custody) (Consolidation) (Amendment) (No. 12)

Decree, 1967, signed by Lieutenant-General J. A. Ankrah, Chairman of the National Liberation Council on 27 November 1967, the name of the said Mohammed Abdul Rahim Salifa was inserted at the end of the schedule to the National Liberation Council (Protective Custody) (Consolidation)

Decree, 1966 (N.L.C.D.111).

(4) That by virtue of my work I am familiar with the signature of the said Lieutenant-General J. A.

Ankrah referred to above.

(5) That this Decree the National Liberation Council (Protective Custody) (Consolidation) (Amendment)

(No. 12) Decree, 1967 was deemed to have come into force on 15 November 1967.

(6) That the same Mohammed Abdul Rahim alias Baba Alhaji mentioned in the Decree referred to in paragraph (5) above is the same as Mohammed Abdul Rahim Baba Salifa on

[p.634] of [1968] GLR 630 whose behalf this writ of habeas corpus has been issued.

(7) That the holding of the said Mohammed Abdul Rahim Baba Salifa in protective custody is legal.

(8) I attach hereto and marked A a photostat copy of the Decree referred to in paragraph (3) supra.” And the photostat copy of the alleged Decree reads as follows:

“N.L.C.D.

NATIONAL LIBERATION COUNCIL (PROTECTIVE CUSTODY)

(CONSOLIDATION) (AMENDMENT) (NO. 12)

DECREE, 1967.

IN pursuance of the Proclamation entitled ‘Proclamation for the constitution of a National Liberation Council for the administration of Ghana and for other matters connected therewith,’ published in Gazette No. 11 of Monday, 28th February, 1966, this decree is hereby made:

1. The National Liberation Council (Protective Custody), (Consolidation) Decree, 1966 (N.L.C.D. 111) as from time to time amended, is hereby further amended by the insertion at the end of the Schedule thereto of the following names:

Benjamin Kofie Otoo Mohamed Abdurahim alias Baba Alhaji Isaac Abraham alias Nana Benyin Ekow Eshun.

2. This decree shall be deemed to have come into force on the 15th day of November, 1967 and notwithstanding the provisions of paragraph 3 of the Proclamation for the constitution of the National Liberation Council published in Gazette No. 11 of 28th February, 1966, this decree shall be deemed so to have come into force notwithstanding that it has not been published in the Gazette as required by that paragraph. Made this 27th day of November, 1967.

(Sgd.) Joseph A. Ankrah Chairman of the National Liberation Council.”

The said prisoner was produced on 2 July 1968, the date of bearing the notice of motion. At the hearing, Mr. John Lynes, counsel appearing for the applicant, outlined the facts as contained in the affidavit in support of the notice of motion. The body of the affidavit reads:

“(1) That I am the father of Mohammed Abdul Rahim Baba Salifa and that he was born in Ghana about the year 1950 being now 18 years of age.

[p.635] of [1968] GLR 630 (2) That I am a native of Guinea but have lived in Accra continuously since 1925.

(3) That my son is a Ghanaian citizen as his mother is a Ghanaian citizen and he was born in Accra.

(4) That in 1965 I sent my son, then aged 15, to Guinea for schooling and placed him under the care of a guardian, but that owing to the extreme inhumanity and ill-treatment he experienced from his guardian (which ill-treatment is evidenced by letters written to me by my son at the time, and I shall ask leave to place the same before this honourable court) he ran away to Sierra Leone.

(5) That in Sierra Leone he asked the Ghana High Commissioner to assist in his return to his parents in Accra, and that in or about June 1967 he was returned to Ghana, but that on his arrival he was immediately detained by the police and has since been continuously interned in the Ussher Fort Prison.

(6) That my son has not to the best of my knowledge, information and belief been guilty of or charged with any subversive, suspicious or criminal activity of any kind or at any time whether in Guinea or

Ghana, and that he was at the time of his detention simply a young school boy.

(7) That I have since seen my son on one occasion only in the Military Hospital, Accra when he begged me to find out the reason for his detention, being unaware of the reason for the same or even whether charges had been preferred against him.

(8) That I have caused my counsel to make full and proper inquiries as to the reason for my son’s detention, and that his inquiries with the Director of Prisons, the Special Branch, and the Attorney-General’s Department have disclosed no reason for my son’s detention, nor whether any charges have been preferred.

(9) That I am advised by counsel and verily believe that my son cannot be detained in prison for one year in this cruel fashion without charges being brought against him, and without knowing the reason for his detention, and without ever having been brought before any court of the land, and where the detention has never been sanctioned by the fiat of the Attorney-General.”

During the argument, counsel for the applicant tendered in evidence as exhibits B and B1 two letters dated 30 December 1965 and 25 July 1966 respectively, purporting to have been written by the said boy to his father, during the boy’s stay in Conakry, Guinea.

[p.636] of [1968] GLR 630

Two other letters dated 30 November 1967 and 19 March 1968 respectively, were tendered in evidence as exhibits C and D; both were written by the boy in the Ussher Fort Prisons, Accra, during the course of his detention there; and these two letters were directed to his father, the applicant herein, through the prison authorities.

In exhibits B and B1 are complaints of hardship being encountered by him in the hands of his guardian, a Dr. Oury, and expressions of his longing to return to Ghana. In exhibit C, he reported of his being in good health, and made a request for a supply of provisions. In exhibit D he speaks of his detention being due to his having arrived in Ghana from Guinea, and of his having so arrived after reporting himself to the Ghana High Commissioner in Sierra Leone. To quote his own words in exhibit D:

“Please, father, I will like you to know that when I was coming I reported myself to the Ghana High Commissioner in Sierra Leone that I am a seventeen-year old student who has been to Guinea in 1965 October (i.e. during the old government) and wanted to come back to Ghana and stay with my parents, where I will be able to continue my studies. Well, this man (the High Commissioner) gave me a ticket, prepared my travelling certificate and helped me to embark into the plane for Ghana – with all my loyalty I am arrested.

Everything is clear, I think, that if I were coming to do something against the government I would not have passed through the Ghana High Commissioner in Sierra Leone, but, as I said, I am destined to be arrested. So leave everything to God, father.

Please, whenever you receive a letter from Oury saying that I have run away, take that letter to the Special Branch (C.I.D.) with my letters which tell you that I am in prison in Ghana, so you have come to beg them to release me because I am innocent and I am a student, I am not interested in politics.”

A letter dated 20 June 1968, from the Director of Prisons, in reply to one written by the solicitor of the applicant on 18 June 1968, expressed a regret that the Director of Prisons was unable to supply the information required and suggested that inquiries might be directed to the Commissioner of Police (C.I.D.) and the Special Branch. This letter was accepted in evidence as exhibit F.

A press release dated 24 April 1968, and numbered 236/8, as issued by the Ministry of Information, was also tendered in evidence by Mr. Lynes, and was accepted and marked exhibit H. In exhibit H, under the rubric RELEASE FROM PROTECTIVE CUSTODY, it is stated thus: “The National Liberation Council has ordered the

[p.637] of [1968] GLR 630 release of the following persons from protective Custody with immediate effect.” Below this statement appears a list of the names of persons taken into protective custody since 17 April 1967, and of the names of Army personnel convicted and still in protective custody, and of persons detained after 24 February 1966. At page three thereof, exhibit H ends with the following statement:

“With today’s releases all persons placed in protective custody since the 24th February Revolution and the 17th April abortive coup have now been released. In the prevailing atmosphere of calm and tolerance in the country the National Liberation Council is pleased to take this step because it has always stressed that the practice is an essential ingredient of democracy.

A few of the persons taken into protective custody have since been convicted through the ordinary process of the law and will be released on the completion of their sentences in the normal way.

The Government hopes that those released will return to normal life as responsible citizens and play their part in the process of nation building.”

On the basis of the foregoing quotation, Mr. Lynes contended that there was no one still being detained under protective custody, and that, as all the persons so released from protective custody had, before their release, been detained by virtue of National Liberation Council Decrees, the document, of which exhibit A annexed to the return filed by the Director of Prisons purported to be a photostat copy, could not legally be a National Liberation Council Decree, and therefore, could not be an enactment, because it (1) bore no number and (2) had not been published in the Gazette, as had been all known National Liberation Council Decrees. And counsel contended further that those points were in contravention of the law as provided by sub-paragraphs (6), (7), (9), (10) and (11) of paragraph 3 of the Proclamation as amended by paragraph 16 (a) of N.L.C.D. 73, with those sub-paragraphs reading as follows:

“(6) Every decree made by the National Liberation Council shall, as soon as practicable after it is made, be published in the Gazette.

(7) A decree made by the Council shall, unless otherwise provided in that decree, come into force on the date of publication of that decree in the Gazette …

(9) Decrees made by the Council shall be numbered consecutively from the commencement of this

Proclamation in accordance with the order in which they are published and the

[p.638] of [1968] GLR 630 numbering shall not begin afresh at the commencement of a calendar year or any other period.

(10) A decree made by the Council shall bear at the head a short title and the citation of the short title of a decree or the number allotted to it on publication shall be sufficient to identify the decree.

(11) Any document purporting to have been printed or published by the Government Printer and purporting to be a decree of the Council (including this Proclamation) duly made in accordance with the provisions of this Proclamation shall be prima facie evidence of the due making thereof and of its terms and number.”

Mr. Lynes therefore forcefully contended that, in the light of those provisions, the document, of which exhibit A was a copy annexed to the return made by the Director of Prisons, was not a Decree. He contended further that the National Liberation Council (Protective Custody) (Consolidation) Decree, 1966 (N.L.C.D. 111), had ten amendments to it, one of which was the National Liberation Council (Protective Custody) Decree, 1967 (N.L.C.D. 161), made on 22 April 1967, and notified in the Gazette on 25 April 1967, and that that dealt with people taken into protective custody after the abortive coup. The last and tenth amendment was the National Liberation Council (Protective Custody) (Consolidation) (Amendment) (No. 10) Decree, 1967 (N.L.C.D. 179), which received Gazette notification on 16 June 1967, and in which was not included the name of the present prisoner who had been kept in custody from June 1967 up to the filing of this application. He further contended that the exhibit annexed to the affidavit of the Director of Prisons must have been released after the issue of this order for habeas corpus, and therefore, that, as it had not been issued before the period of detention of the prisoner, it was a document unlawfully issued. And he contended in the same forceful strain, that the prisoner was entitled to be discharged by virtue of section 4 of the Habeas Corpus Act, 1964 (Act 244), as there was no legal justification for the detention.

On this first day of hearing, 3 July 1968, Mr. Ahlijah, State Attorney, arguing for the Republic, per contra, referred the court to paragraph 3 of the Proclamation in conjunction with its amendment by paragraph 16 of N.L.C.D. 73, particularly to sub-paragraph (5) thereof, which reads thus:

“(5) The exercise of the power of the National Liberation Council to make a decree, if not signified by the whole Council, may be signified under the hand of the Chairman or Deputy Chairman of the Council.”

[p.639] of [1968] GLR 630

He also referred the court to paragraph 6A (4) and paragraph 7 (1) of the Proclamation as amended by the National Liberation Council (Proclamation) (Amendment) Decree, 1967 (N.L.C.D. 183), which read respectively:

“4 (4) Nothing in any enactment modified by this paragraph shall, by virtue of such modification, be deemed to require anything done or made by any authority to be submitted again to that authority for decision or to be laid before that authority or otherwise to be subject to annulment or confirmation by that authority.”

“7 (1) The exercise of any function vested in the National Liberation Council by any enactment may, if not signified by all the members of that Council, be signified under the hand of the Chairman or the Deputy Chairman of that Council.”

Mr. Ahlijah was therefore, inferentially, contending that by virtue of the first and third references above, the document, of which exhibit A annexed to the affidavit of the Director of Prisons was a photostat copy, was a lawful Decree, because it was apparently signed by the Chairman of the National Liberation Council, and that, therefore, it could not be called into question, and that, therefore, in the light of the second reference, even though the document in question bore no number it could not legally be resubmitted to the National Liberation Council for a number to be assigned thereto.

The first part of his argument was tenable only if the alleged document was a Decree in the eye of the law. The latter part was imbued with a fallacy, because “this paragraph” mentioned in the second reference is paragraph 4 of N.L.C.D. 183 which deals with amendment of the Proclamation, and is in connection with, “Adaptation of references to President, Cabinet, and Minister, etc. in existing enactments.” In effect, that paragraph 4 of N.L.C.D. 183 amends the Proclamation by substituting new paragraphs 6A and 7. And paragraph 6A (4) is therefore to the effect that if, in the old regime, say, the President, or the Cabinet, or a Minister had already exercised a certain function assigned to him or them, in this new regime of a transitional period, such exercise of function should now be deemed as valid, and that such function should not at the present time, be made to be exercised again for its validity by the entity now representing the former one checking it. The adaptations are: N.L.C. for President, Executive Council for Cabinet, Commissioner for Minister, National Liberation Council for National Assembly. The fallacy given rise to by the learned state attorney’s argument made the court adjourn the matter to the next day, 4 July 1968.

[p.640] of [1968] GLR 630

On this day of hearing, Mr. Gyeke-Dako, principal state attorney, came to the scene as leading Mr. Ahlijah for the Republic. And in the course of his argument Mr. Gyeke-Dako argued through the same fallacious channel which I have rejected below. Mr. Gyeke Dako, for the Republic, argued substantially as follows: That, as section 1 of Act 244 speaks of “unlawfully detained,” it implied detention not backed by law, and, therefore, if the detention was by any Decree which was a law in force, such detention was lawful, and that the reason for the unlawfulness was not to be based on morality but on enforceable law. And he contended that the unlawfulness might arise as a result of a particular defect on the face of the document authorising the detention, or, as a result of the detainee being held in detention without authority at all; and that the cumulative effect of the first would be to render the document invalid. If the applicant in this case was contesting the validity or invalidity of the alleged document being a Decree, then it was being contended on behalf of the Republic that that document, exhibit A annexed to the return was a photostat copy of a document which was in fact a Decree. The learned principal state attorney in his argument contended, further, that a distinction must be made between the existence of a Decree and the publication of a Decree, and that a Decree could be a Decree notwithstanding that it had not been published. And, in arguing that the relevant document was a Decree, his first contention was based upon a statement by him that the signature at the bottom of it was that of the Chairman of the National Liberation Council and, therefore, it was valid. In support of this he referred to paragraph 3 (5) of the Proclamation as amended by paragraph 16 (a) of the National Liberation Council (Consequential and Transitory Provisions) Decree, 1966 (N.L.C.D. 73), with that sub-paragraph (5) stating:

“(5) The exercise of the power of the National Liberation Council to make a decree, if not signified by the whole Council, may be signified under the hand of the Chairman or Deputy Chairman of the Council.”

At this juncture it must be said that I have no hesitation in upholding that the signature thereon is genuine. But it cannot be indefeasibly contended at this juncture that any document bearing his signature is a Decree. The learned principal state attorney then further referred the court to paragraph 6A (4) of the Proclamation as amended by paragraph 4 (1) of N.L.C.D. 183 which reads thus:

“(4) Nothing in any enactment modified by this paragraph shall, by virtue of such modification, be deemed to require anything done or made by any authority to be submitted again

[p.641] of [1968] GLR 630 to that authority for decision or to be laid before that authority or otherwise to be subject to annulment or confirmation by that authority.”

By this reference he inferentially contended that, as the alleged document bore the genuine signature of the Chairman of the National Liberation Council, under the provisions of paragraph 3 (5) of the Proclamation, the document could not legally be referred back to the National Liberation Council for any further consideration, say, for giving the document a National Liberation Council Decree number, or for having it published in the Gazette, and that, therefore, that document was valid in law as a Decree.

At this juncture, let it be reiterated straightaway that this apparent contention falls flat, because, not only is it untenable, but also it is extravagantly fallacious; because, while paragraph 6A (4), in referring to “any enactment modified in this paragraph,” i.e. the whole of paragraph 6A, touching the preceding sub-paragraphs (1), (2) and (3), these sub-paragraphs deal with matters extraneous to questions appertaining to the legal validity of a Decree – those preceding sub-paragraphs deal with “Adaptation of references to President, Cabinet, and Minister, etc., in existing enactments” to “National Liberation Council,” “Executive Council” and “Commissioner,” respectively, and adaptation of “National Assembly” to “National Liberation Council.” For the sake of clarity, I will quote hereunder the whole of paragraph 6A in question:

“6A. (1) Subject to any decree that may be made by the National Liberation Council, any reference to President, Cabinet or Minister in any enactment continued in force by this Proclamation shall,- (a) in the case of a reference to President, be construed as a reference to the National Liberation Council;

(b) in the case of a reference to the Cabinet, be construed as a reference to the Executive Council; and (c) in the case of a reference to Minister, be construed as a reference to the Commissioner to whom the National Liberation Council has for the time being assigned responsibility for the subject or department of State for which a Minister would have been responsible under that enactment.

(2) Unless the context otherwise requires, any reference to the National Assembly in any such enactment as is referred

[p.642] of [1968] GLR 630 to in sub-paragraph (1) of this paragraph shall be construed as a reference to the National Liberation Council.

(3) Any reference in any such enactment or in any other enactment to the Member of the National Liberation Council responsible for any subject or department of State shall be construed as a reference to the Commissioner to whom the National Liberation Council has for the time being assigned responsibility for that subject or department of State.”

And then comes the controversial sub-paragraph (4):

“(4) Nothing in any enactment modified by this paragraph shall, by virtue of such modification, be deemed to require anything done or made by any authority to be submitted again to that authority for decision or to be laid before that authority or otherwise to be subject to annulment or confirmation by that authority.”

In this sub-paragraph (4) the words “by this paragraph” clearly refers to this new paragraph 6A of the Proclamation as amended by N.L.C.D. 183, and not to paragraph 3 of the Proclamation as amended by N.L.C.D. 73.

Mr. Gyeke-Dako further argued that paragraph 16 of N.L.C.D. 73 amended paragraph 3 of the Proclamation by adding to it sub-paragraph (7) which states thus: “(7) A decree made by the Council shall, unless otherwise provided in that decree, come into force on the date of publication of that decree in the Gazette.” And he contends therefore that the document evidenced by exhibit A in question was a Decree, because in it appeared paragraph 2 thereof which states that:

“2. This decree shall be deemed to have come into force on the 15th day of November, 1967 and notwithstanding the provisions of paragraph 3 of the Proclamation for the constitution of the National Liberation Council published in Gazette No. 11 of 28th February 1966, this decree shall be deemed so to have come into force notwithstanding that it has not been published in the Gazette as required by that paragraph.”

Here, it must be pointed out that, in sub-paragraph (7) as referred to above, what was dispensed with was the validity of the force of a Decree with respect to the date of its publication in the Gazette, in effect, if within the Decree a date is specified as being the date on which it will come into force, then, notwithstanding that it is published in the Gazette earlier or later than that specified date, that specified date should be the one on which the Decree should come

[p.643] of [1968] GLR 630 into force. Failing the specifying of such a date within the Decree, as stated in that sub-paragraph (7), the Decree, “shall come into force on the date of publication of that decree in the Gazette”. Publication in the Gazette is not therefore dispensed with statutorily.

This sub-paragraph (7) deals with the date of validity. The express modification of that alone in that sub-paragraph, does not expressly or by any necessary implication exclude the mandatory provisions in sub-paragraph (6) as to requirement of publication in the Gazette, in sub-paragraph (9) as to the requirement of numbering, and in sub-paragraph (11) as to its being necessarily accorded as prima facie evidence “of the due making thereof and of its terms and number” consequent only upon the “document purporting to have been printed or published by the Government Printer and purporting to be a decree of the Council … duly made in accordance with the provisions of this Proclamation.”

Tersely, therefore, even though the date of the coming into force of a Decree can be so stated in the body of the Decree as to make the date of publication not the date of its coming into force, nevertheless, publication of it in the Gazette, numbering thereof in accordance with the order in which Decrees are published, printing and publication thereof by the Government Printer, together with its consequential purport that it was signed by the Chairman of the N.L.C., cannot be respectively legally dispensed with in the making and issuing of a Decree having the force of law; for, by paragraph 3 (1) of the Proclamation, the N.L.C. “shall have the power … to make and issue decrees which shall have the force of law in Ghana.” (The emphasis is mine.)

Mr. Lynes in his reply referred the court to the meaning of the word “issue.” In the Concise Oxford Dictionary (5th ed.) at p. 646, its meaning in this context must be “publish, put into circulation.” If a purported Decree is made, and is thereafter not issued in accordance with the above relevant provisions, it inferentially shall lack the force of law in Ghana. Because the use of the word “and” between the word “make” and the word “issue,” in paragraph 3 (1) of the Proclamation, is unequivocally conjunctive, and not disjunctive.

The last argument of the learned principal state attorney was to the effect that, by paragraph 3 (5) of the Proclamation, the N.L.C. have an unlimited power. This contention was pitched too high-it undermines or undefines the purposes for which by the Proclamation the N.L.C. was established. According to the preamble to the Proclamation, it was established in the interest of the people of Ghana, and for the provision for the proper administration of the country and for the maintenance of law and order. By paragraph 2 (2) of the Proclamation, one of the provisions which was to have effect is “Kwame Nkrumah is dismissed from the Office of President

[p.644] of [1968] GLR 630 of Ghana …” In effect the Proclamation provides for the eradication by the N.L.C. of illimitability of power in Ghana; and I therefore dismiss in limine the last argument of the learned principal state attorney that the N.L.C. have by the Proclamation an unlimited power. With due deference to the learned principal state attorney, that argument commands no weight, for autocracy in Ghana was given a decent burial on 24 February 1966.

During the course of his argument, Mr. Gyeke-Dako, counsel for the respondent has contended that, if the applicant was seeking to contest the validity or invalidity of the alleged Decree, that would amount to questioning whether an enactment was made in excess of the powers conferred on the authorities responsible for making such enactment, under the provisions of paragraph 2 (2) of N.L.C.D. 84, and that, therefore, if that question was raised in the High Court, it must be referred to the Court of Appeal for a decision.

I am unable to uphold that contention, even though I agree that a Decree is an Act, and that the validity of the relevant document is in question-the validity thereof as being challenged is not with regard to its contents after an admission that it is an Act, but with regard to its being an Act, and therefore, it is being denied that it is an Act at all: the question is whether an enactment has been duly made as an enactment, but not that it has been so duly made but so made in excess of the power of the authorities responsible for making the enactment. Paragraph 2 (2) of N.L.C.D. 84, therefore, has no room here for application.

The press release issued by the Ministry of Information on 24 April 1968 – exhibit H tendered in evidence on behalf of the applicant – has not been challenged with regard to its source, and contents, part of which is the statement that: “With today’s release all persons placed in protective custody since the 24th February Revolution and the 17th April abortive coup have now been released.” The Ministry of Information is the organ of the government through which publicity is given to any act of the government. The above statement is therefore an established fact, and that fact is true. And therefore the detainee in this case, undeniably taken into custody in June 1967 up to date, should have been released. I find that the document of which exhibit A, annexed to the return of the Director of Prisons, is a photostat copy is not a Decree in the eyes of the law. As I have found in the premises that that document is not a Decree having the force of law in consonance with the provisions of the Proclamation, I do uphold the contention of Mr. Gyeke-Dako, the learned principal state attorney, that the unlawfulness of the detention, in section 1 of the Habeas Corpus Act, 1964 (Act 244), may arise as a result of a particular defect on the face of the document

[p.645] of [1968] GLR 630 authorising the detention. I also find that the alleged document is not in law a commitment warrant upon which a person can lawfully be detained.

In the result I do find that the said prisoner, Mohammed Abdul Rahim Baba Salifa, undeniably described, in exhibit A to the return, as “Mohamed Abdurahim alias Baba Alhaji,” has been and is being unlawfully detained, not because the authorities have no discretionary power to detain him, but because such discretionary power has been exercised in detaining him in a manner otherwise than is lawfully permitted under the provisions of the law as laid down by the Act of Parliament, namely, the Proclamation. And I therefore do order that the said prisoner be discharged forthwith.

Costs of N¢150.00 for the applicant against the Director of Prisons.

DECISION

Application for an order of habeas corpus granted with costs.

Order accordingly.

K.S.N.-D.