IN RE THE PREVENTIVE DETENTION ACT, 1958 AND IN RE OKINE AND OTHERS AND IN RE APPLICATION FOR WRITS OF HABEAS CORPUS SUBJICIENDUM [1960] GLR 84

DIVISION: IN THE COURT OF APPEAL

DATE: 11TH APRIL, 1960

BEFORE: VAN LARE, J.A., GRANVILLE SHARP, J.A. AND SARKODEE-ADOO, J.

CASES REFERRED TO

(1) Cox v. Hakes (1890) 15 App. Cas. 506;

(2) R. v. London Sessions ex parte Bowes (1950) 66 T.L.R. Pt. II 804;

(3) Magor & St. Mellonts R. D. C. v. Newport Corporation [1951] 2 All E.R. 839

ALSO REFERRED TO IN ARGUMENT:

National Telephone Co. v. P.M.G. [1913] A.C. 546.

Secretary of State for Home Affairs v. O’Brien [1923] A.C. 603.

Amand v. Home Secretary [1943] A.C. 147.

Kudiabor v. Kudanu 6 W.A.C.A. 14.

Chief Oloto and Another v. Chairman L.E.D.B. 13 W.A.C.A. 57.

Re Hastings (No. 3) [1959] 3 All E.R. 221.

Att.-Gen. v. Sillen 10 H.L. Cas. 704. [p.85] of [1960] GLR 84

NATURE OF PROCEEDINGS

APPEAL from a dismissal of an application for a writ of habeas corpus.

COUNSEL

Danquah for appellants.

Amissah for respondents.

JUDGMENT OF VAN LARE J.A.

Van Lare, J.A. delivered the judgment of the court: The appellants, who are represented by Dr. Danquah before us, were detained on the 10th November, 1958 under an order made in pursuance of section 2 (1) of the Preventive Detention Act, 1958. They sought to secure their release from detention by process of an application for a writ of habeas corpus, which application came before Smith J. in the Divisional Court, Accra. The learned judge gave his ruling, by which he dismissed the application, on the 10th January, 1959. From this ruling the detainees sought to appeal to this court, where arguments have been confined to a preliminary point raised by Mr. Amissah, Acting Senior Crown Counsel, on behalf of the respondents (the Minister of Defence and the Director of Prisons). This preliminary point is stated as follows: That there is no right of appeal to the Court of Appeal from a refusal of the Divisional Court to grant a writ of habeas corpus ad subjiciendum on the grounds:

(1) That this appeal, being from the Divisional Court sitting in its original jurisdiction and not being an appeal in a criminal case, lies to the Court of Appeal only if it comes within section 3 of the Court of Appeal Ordinance, 1957, and that the judgment or decision of the Divisional Court appealed from does not come within section 3 of the Court of Appeal Ordinance, 1957.” Section 3 of the Court of Appeal Ordinance, 1957 is as follows:— “An appeal shall lie to the Court of Appeal from a Divisional Court (sitting in its original jurisdiction) in the following cases: (1) from all final judgments and decisions given in respect of a claim exceeding the sum of one hundred pounds or determining directly or indirectly a claim or question respecting money, goods and other property or any civil right or other matter above the amount or value of one hundred pounds;

(2) from any decree nisi or absolute, provided that no appeal from an order absolute for dissolution or nullity of marriage shall lie in favour of any party who, having had time and opportunity to appeal from the decree nisi on which such order may be founded, shall not have appealed therefrom;

(3) by special leave of the Court making the order, but not otherwise, from all interlocutory orders and decisions made in the course of any suit or matter before a Divisional Court:

Provided always that no appeal shall lie except by special leave of’ the Court making the order or of the

Court of Appeal from an order made ex parte or by consent or as to costs only”.

It is upon the words contained in subsection (1),

“from all final judgments and decisions given in respect of a claim

[p.86] of [1960] GLR 84 exceeding the sum of one hundred pounds or determining directly or indirectly a claim or question respecting money, goods and other property or any civil right or other matter above the amount or value of one hundred pounds”, that learned Crown counsel bases his contention that an appeal in the matter of habeas corpus is excluded, and that this court has therefore no jurisdiction to entertain the appeal on the grounds that a refusal of a writ of habeas corpus, though it involves a denial of a civil right (that is to say, the liberty of the subject), is not such a civil right as is calculable, in terms of money above the amount of one hundred pounds, or at all. Crown counsel further contended that from the wording of this section the legislature cannot be held to have contemplated the granting of a right of appeal against a refusal to issue a writ of habeas corpus. Dr. Danquah appears to concede that there would be no right of appeal in respect of a civil right unless such right could be valued at more than one hundred pounds; but he contends that the right of the subject to freedom from unlawful restraint is (as he put it) “ priceless”, and therefore necessarily of the value of more than one hundred pounds. He argued further, however, that even assuming that the wording of the section does not contemplate appeals in cases of habeas corpus, an appeal must lie because of the provision of section 83 of the Courts Ordinance, which reads as follows:—

“Subject to the terms of this or any other Ordinance, the common law, the doctrines of equity, and the statutes of general application which were in force in England on the 24th day of July, 1874, shall be in force within the jurisdiction of the Courts.” He sought to fortify this argument by reference to section 20A (1) of the Courts Ordinance, and to Order 74 of the Supreme Court (Civil Procedure) Rules. These read respectively as follows:— “20A (1) The Court of Appeal shall have jurisdiction to hear and determine such appeals from the judgments of other Courts (including reserved questions of law and cases stated) and to exercise such powers and authorities as may be prescribed by any Ordinance for the time being in force, subject to the provisions of this Ordinance and of any such Ordinance; and, subject as aforesaid, for all purposes of and incidental to the hearing and determination of any appeal within its jurisdiction, the Court of Appeal shall have all the power, authority and jurisdiction vested in the Court from which the appeal is brought.” “Order 74. Where no provision is made by these Rules the procedure, practice and forms in force for the time being in the High Court of Justice in England shall so far as they can be conveniently applied, be in force in the High Court of Ghana.” The argument, as we understand it, is that the Ordinance (the term “Ordinance” being defined as including rules) must be intended to incorporate rules and orders, and so, since section 3 of the Court of Appeal Ordinance omits any express provision for an appeal in the matter [p.87] of [1960] GLR 84 of habeas corpus, that omission must be supplied by reference to Order 59 of the Rules of the Supreme Court in England which regulate appeals in such matters in the High Court of Justice in England. We find this an attractive argument, but it fails to take into consideration that the rules of the High Court in England are made in order to give effect to the right of appeal from any judgment or order of the High Court of Justice in England conferred by section 27 (1) of the Judicature Act, 1925 (formerly section 19 of the Supreme Court of Judicature Act, 1873, which did not come into force until 1st November, 1875). We find, therefore, that the right of appeal in England has always been a right conferred by statute, and not one granted by rules or orders of the Supreme Court. This is made clear by the notes to Order 58, Rule 1 of the Supreme Court Rules in England, at p. 1651 of the Annual Practice, 1958, as follows: “The creation of a right of appeal is an act which requires legislative authority. Neither the inferior nor the superior tribunal nor both combined can create such a right . . . Where the statute provides no procedure for the appeal it is the duty of the Appeal Court to do so, so that the appeal may be heard (Smith v. Williams [1922] 1 K.B. 158 at 165).” Dr. Danquah sought refuge from this situation in the further contention that prerogative writs lie outside any statutory authority, and that therefore the right of appeal in such cases is a part of the common law of England, which (as he says) has “ grown throughout the years. “ In this he appears to enunciate a principle that there can be a right of appeal based solely upon the common law, and to suggest that this court has inherent powers to entertain an appeal such as the present, especially because it involves the liberty of the subject. We listened with some sympathy to Dr. Danquah’s emphasis upon the importance attached to the liberty of the subject, and we would cite in this connection the words of Lord Herschell in the case of Cox v. Hakes (15 App. Cas. at p. 527):

“My Lords, the preliminary question argued upon the hearing of this appeal is one of great importance. It touches closely the liberty of the subject, and the protection afforded by discharge from custody under a writ of habeas corpus. The law of this country has been very jealous of any infringement of personal liberty, and a great safeguard against it has been provided by the manner in which the Courts have exercised their jurisdiction to discharge under a writ of habeas corpus those detained unlawfully in custody.” We cannot, however, confer upon ourselves on sympathetic grounds the right to entertain an appeal when such right is not created by law. In the case of R. v. London Sessions ex parte Bowes (66 T.L.R. Pt. II at p. 805) Lord Goddard, C.J. made this clear when he said: “An order of certiorari is sought on the ground that the appeal committee had no jurisdiction to entertain an appeal against forfeiture. It is [a] common place of the law that no appeal lies against the order of any Court unless one is given by statute.” [p.88] of [1960] GLR 84

The argument of Dr. Danquah, if sustained, would contradict all authorities on this matter, and would introduce into the law a novelty for which we for ourselves could accept no responsibility. We arebbound to hold that section 3 of the Court of Appeal Ordinance, 1957, under which alone any appeal to this court could lie in this matter, does not provide the right of appeal for which Dr. Danquah contends.

It is not possible for us in our judicial capacity to provide for an omission which can be remedied by the legislature alone. Perhaps we may venture to observe that if section 3 (1) of the Court of Appeal Ordinance had read “a claim or question respecting money, goods and other property or other matter above the amount or value of one hundred pounds, of any civil right”, it would have provided for an appeal in a case such as this. We cannot, however, amend the law any more than we can enact it; this is entirely for the legislature, and we may hope that it will be a matter to receive consideration. The view which we have expressed with regard to this aspect of the matter has been repeatedly emphasised in the courts. Thus in the case of Magor and St. Mellons R.D.C. v. Newport Corporation ( [1951] 2 All E.R. at p. 847) Lord Morton of Henryton stated the principle as follows: “In so far as the intention of Parliament or of Ministers is revealed in Acts of Parliament or orders, either by the language used or by necessary implication, the courts should, of course, carry these intentions out, but it is not the function of any judge to fill in what he conceives to be the gaps in an Act of Parliament.

If he does so, he is usurping the function of the legislature.”

Before we part with this case however, although we do not seek to enter into the merits, we should point out by way of obiter dictum that habeas corpus lies only in cases of unlawful detention. It may not be inopportune to draw attention to section 3 (1) of the Preventive Detention Act, 1958, as follows: “An order under this Act shall constitute an authority to any police officer to arrest the person against whom the order is made and that person shall, while detained in pursuance of the order, be in lawful custody.”

In the result we are forced to the conclusion that we have no jurisdiction to entertain the appeal, which fails in limine; it is accordingly dismissed.

DECISION Appeal dismissed.