REPUBLIC v. DIRECTOR OF SPECIAL BRANCH; EX PARTE SALIFA [1968] GLR 646

DIVISION: HIGH COURT, ACCRA

DATE: 15 JULY 1968

BEFORE: CHARLES CRABBE J.

NATURE OF PROCEEDINGS

APPLICATION for a writ of habeas corpus directed to the Director of Special Branch commanding him to bring the body of the applicant to court and to have the applicant released on the order of the court. The facts are fully set out in the ruling.

COUNSEL

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

Victor Owusu, Attorney-General (with him J. N. K. Taylor, Director of Public Prosecutions) for the Director of the Special Branch.

JUDGMENT OF CHARLES GRABBE J.

This is an application for a writ of habeas corpus seeking an order of this court directed to the Director of the Special Branch of the Police Service, Accra, commanding him to have the body of Mohammed Abdul Rahim Baba Salifa brought before this court and to have him released on the order of the court.

On 10 July 1968 an ex parte motion was moved by Mr. Lynes for and on behalf of Alhaji Mohammed Salifa for an order for habeas corpus directed against the Director of the Special Branch for the immediate release of his son Mohammed Abdul Rahim Baba Salifa and for such further or other order or orders as the court may seem fit to make.

It was contended in this application on 10 July 1968 that having regard to certain matters deposed to in an affidavit attached to the application the court should order the issue immediately of a writ of habeas corpus directed against the Director of the Special Branch of the Police Service. Having heard learned counsel I made the following order:

“I order that a writ of habeas corpus should issue immediately directed against the Director of the Special Branch to produce before me this morning the boy named in the affidavit supporting the application for the writ of habeas corpus. I order that the sheriff should immediately cause a bailiff to serve the writ on the director as aforesaid or mentioned.”

[p.649] of [1968] GLR 646

This writ was duly served on the director and later on the same day. Mr. Victor Owusu, the Attorney-General appeared, with him Mr. J. N. K. Taylor, the Director of Public Prosecutions, to argue on behalf of the Director of the Special Branch; Mr. Lynes still representing the interest of the applicant, and with him Mr. Cletus K. Amoah.

In the affidavit to which I have already referred, counsel acting on behalf of the father of the said Salifa deposed, inter alia:

(a) that the said Salifa was being detained at a place unknown by the Director of the Special Branch of the Police Service;

(b) that on 8 July 1968 as a result of a writ of habeas corpus ad subjiciendum which he had issued on 29 June 1968, directed to the Director of Prisons, Accra, and the Director of Special Branch of the Police Service, Accra, the body of the said Salifa was produced before my learned brother Anterkyi J. who found the said detention to be unlawful and ordered the immediate release of the said Salifa;

(c) that immediately after the order of the court as aforesaid a Mr. Gyeke Dako instructed the police officers within the precincts of the court to arrest the boy;

(d) that he at once warned the police officers concerned not to commit contempt of court and the said Salifa was not arrested within the precincts of the court and thereafter he conveyed the boy to his office where he remained until about 1.00 p.m., of the same day when he went home, returning later at about 2.30 p.m., in great fear and alarm to tell counsel that police officers in a car had come to his home searching for him and had taken away his aged father for questioning;

(e) that he took the boy to the Special Branch on 9 July and saw a Mr. Botchway who assured him that the said Salifa would not be re-arrested but that immediately on leaving Mr. Botchway’s office, three police officers approached him as he was entering his car with the boy and one of them, an inspector of police, told the said Salifa, in his presence, that the said Salifa was under arrest. He at once asked the nature of the charge, the inspector’s name and the source of the inspector’s authority and the inspector replied that the arrest was for suspected subversion on the instructions of the Director of the Special Branch. It was in respect of this re-arrest that the application was brought before me on 10 July consequent upon which I made the order already referred to.

[p.650] of [1968] GLR 646

When the director later on in the morning appeared before me with the said Salifa, Mr. Lynes for the applicant referred the court to the provisions of Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), Order 59, r. 18 of which states that:

“When a return to the writ is made, the return shall first be read, and motion then made for discharging or remanding the prisoner or amending or quashing the return, and where the prisoner is brought up in accordance with the writ, his counsel shall be heard first, then the counsel for the [Republic], and then one counsel for the prisoner in reply.”

On this issue of the return, the learned Attorney-General said that they had only been served with the order that morning whilst in court. Nonetheless they were in court and their presence should be treated as a return and that they were ready to go on. This was agreed to by learned counsel for the applicant.

On the issue whether the provisions of the Habeas Corpus Act, 1964 (Act 244), ousted the provisions of the rules of court, Mr. Lynes on behalf of the applicant stated that the rules were procedural and the matter was not gone into any further. I am of the opinion, however, that the Habeas Corpus Act, 1964 (Act 244), governs both substantively and adjectivally the issue of orders for writs of habeas corpus in this country and it is only where the provisions of the Act have not stated any matter of a procedural nature that the rules can be looked at. As this matter was not argued I do not intend to go into it in any detail. Mr. Lynes for the applicant was rather sorry that they have had to waste the time of the High Court on substantially the same grounds as had been heard before by my learned brother Anterkyi j. It would appear, he thought, that the Decree which had then been handed to me by the learned Attorney-General was virtually in all material respects to the same effect as the National Liberation Council (Protective Custody) (Consolidation) (Amendment) (No. 12) Decree, 1967, so called, in respect of which a ruling had already been given and under which the boy in this case had already been discharged. This paper, as Mr. Lynes put it, that had been produced to the court purported to be a Decree but, submitted Mr. Lynes, it fails in various parts, in particular, it is not numbered nor, has it been published, to satisfy the requirements of the Proclamation issued by the National Liberation Council for the Administration of Ghana. He then referred to the National Liberation Council (Consequential and Transitory Provisions) Decree, 1966 (N.L.C.D, 73), para. 16 which amends paragraph 3 (6) of the Proclamation as follows: [p.651] of [1968] GLR 646

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

Mr. Lynes contended that under paragraph 3 (10) of the Proclamation for the Administration of Ghana as amended by N.L.C.D. 73, para. 16 (a) it was the intention that a Decree issued by the National Liberation Council should be numbered so that one could quote the Decree by the number. This, he maintained, was supported by the provisions of paragraph 3 (11) which is in the following terms:

“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.”

In other words, contended Mr. Lynes, the method of proving a Decree before the court was the production of a printer’s copy from the Government Printer which, I think, should read the General Manager, State Publishing Corporation. Mr. Lynes submitted that the paper that had been produced to the court was not a Decree as it did not conform to the rules laid down by the National Liberation Council itself and that there was no evidence before the court that indeed it was a Decree at all. In the circumstances, therefore, he asked that the prisoner, the said Salifa, should be discharged. The Attorney-General submitted that the signature of the Chairman of the National Liberation Council was not disputed and that the crux of the argument put forward by his learned friend presupposes that the powers of the National Liberation Council were limited either by somebody or by the National Liberation Council itself. It was the respectful submission of the learned Attorney-General that the powers of the National Liberation Council were unlimited and indeed the National Liberation Council was more powerful than the Colonial Government and even the Government of independent Ghana including the Parliament of the Republic of Ghana. He maintained that the Colonial Governor could assent to legislation but there were certain specified fields reserved to the Secretary of State which neither the Colonial Governor nor the colonial legislature could touch and that even under the Republican Constitution, 1960, which has now been suspended, certain entrenched clauses could not be legislated upon without a prior referendum. He relied upon paragraph 3(1) of the Proclamation for the Administration of Ghana as the source of power of the [p.652] of [1968] GLR 646

National Liberation Council to issue and make Decrees, This sub-paragraph reads as follows:

“Until such time as a new Constitution is promulgated by the People of Ghana, the National Liberation Council shall have power for such purposes as they may think fit and in the National Interest to make and issue decrees which shall have the force of law in Ghana.”

The first submission then of the learned Attorney-General was that the powers of the National Liberation Council being unlimited the National Liberation Council has power to do anything it thinks fit. From that it follows that the National Liberation Council could make a Decree today to say that all Decrees shall be published and the following day make another Decree that no Decree shall be published or make a Decree that a particular Decree should not be published and any such Decree would have the force of law. The learned Attorney-General then read paragraph 2 of what he called the Decree which has been issued against the son of the applicant and which Mr. Lynes referred to as “this paper” or the “Decree so-called.”

This paragraph reads as follows:

“This Decree shall be deemed to have come into force on the 8th day of July, 1968 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, (as amended by paragraph 16 of N.L.C.D. 73) 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.” The learned Attorney-General submitted that this paragraph sets the seal on the matter and that should be the end but he thought that for the purpose of a fuller record he would deal with one or two matters which had been raised by his learned friend, Mr. Lynes. He contended that paragraph 3 (4) of the Proclamation for the Administration of Ghana, as amended from time to time, clearly showed that the publication of a Decree could be dispensed with and that to that extent the Decree now before the court is amending in terms of paragraph 2, which I have already quoted, the provisions of paragraph 3 (6). He also referred to sub-paragraph (9), (10) and (11) to substantiate his argument that the numbering of a Decree relates only to Decrees which were being published and could not be taken to refer to any Decree which was not published. In other words,

[p.653] of [1968] GLR 646 the question of numbering arises only if there was a publication, otherwise the provisions of those paragraphs were irrelevant to present matters. He also contended that paragraph 3 (11) was also irrelevant because it is talking of publication and referred to the National Liberation Council (Proclamation) (Amendment) Decree, 1967 (N.L.C.D. 183), para 7 (4) which, he contended, should be read in conjunction with paragraph 3 (3) of the Proclamation for the Administration of Ghana. Mr. Lynes in reply was rather surprised that, as he put it, his learned friend who has suffered under the previous regime should make such assertions as that the National Liberation Council could make Decrees unknown to the public and unknown to the law. He maintained that the first thing the National Liberation Council did when it came into power was to make a Proclamation to make and issue Decrees. The Concise Oxford Dictionary (5th ed.) at p. 316 defined a Decree as an “Ordinance or edict set forth by the civil or other authority….” He thought that the Proclamation made it quite clear that the National Liberation Council could make and issue Decrees but in the Decree before the court there was paragraph 2 which gave retrospective effect to the Decree. He maintained that paragraph 6 and 7 of the Proclamation as amended by N.L.C.D. 183 should be read together but that paragraph 7 had no bearing on the Decree, the rules relating to which were contained in paragraph 3 of the Proclamation for the Constitution of the National Liberation Council and the Administration of Ghana. He agreed with his learned friend the Attorney-General that the powers of the National Liberation Council were unlimited except in so far as the National Liberation Council had itself in the Proclamation laid down limitations on itself. Those limitations could be amended by the National Liberation Council but, he contended, they could only be amended according to the rules which the National Liberation Council had itself laid down and the rules governing making of Decrees by the National Liberation Council were contained in paragraph 3 of the Proclamation which contains in itself the limitations which the National Liberation Council itself had placed on its powers to make and issue Decrees. Finally he submitted that the National Liberation Council could not make Decrees of which the public knew nothing and he contended that reading the said paragraph 3 of the Proclamation which contains within its provisions the limitations, the Decree now before the court could only be said to have been issued when it was published. In other words, for a Decree to be considered as having been issued it must have been published and published in [p.654] of [1968] GLR 646 accordance with the provisions of paragraph 3 of the Proclamation for the Constitution of the National Liberation Council and the Administration of Ghana.

For the sake of convenience I set out below in full the said Paragraph 3 as amended as at the time this matter was argued before me:

“3. (1) until such time as a new Constitution is promulgated by the People of Ghana, the National Liberation Council shall have power for such purposes as they may think fit and in the National Interest to make and issue decrees which shall have the force of law in Ghana.

(2) Subject to any decree made under the immediately preceding sub-paragraph, any enactment or rule of law in force in Ghana immediately before the 24th day of February, 1966 shall continue in force and any such enactment or rule of law may by decree of the National Liberation Council be revoked, repealed, amended (whether by addition, omission, substitution or otherwise) or suspended.

(3) Where any enactment or rule of law in force immediately before the 24th day of February, 1966 is in conflict with any provision of a decree made by the National Liberation Council the said provision shall prevail over that enactment and to the extent to which the enactment conflicts with the provision of the decree, that enactment shall be deemed to be amended by the decree.

(4) Any decree made by the National Liberation Council may be amended or revoked or suspended by another decree of the Council.

(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.

(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.

(8) Any provision in any decree made by the Council regulating the coming into operation of that decree or any part thereof shall have effect notwithstanding that the part of the decree containing the provision has not yet come into force.

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

[p.655] of [1968] GLR 646 in accordance with the order in which they are published and the 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.”

The writ of habeas corpus is the time-honoured method which is used for securing the liberty of the individual. It affords the effective means by which a person can be immediately released from unlawful or unjustifiable detention, that is, wrongful restraint of personal liberty. It prevents or is used to prevent the abuse of power and puts a check on arbitrary arrests. It is always available where there is a deprivation of the personal liberty of the individual without legal justification. An important element in the operation of the writ of habeas corpus is the use of the word “unlawful” or as it is sometimes put unjustifiable. If the detention is lawful there can in some places, at least, be a resort to habeas corpus in cases where even though a person has been lawfully arrested, for example, on a criminal charge he is being kept in prison without trial. In the affidavit sworn to by Mr. Cletus Kwasi Amoah on the instructions of Alhaji Mohammed Salifa, the father of the boy Mohammed Abdul Rahim Baba Salifa, appear these words:

“That immediately on leaving Mr. Botchway’s office, as I was entering my car with the boy, three police officers approached and one, who said he was an inspector of police, told the boy in my presence that he was under arrest.

That I at once asked the nature of the charge, the inspector’s name and the source of his authority.

That the inspector replied that the arrest was for suspected subversion on the instructions of the Director of Special Branch, and reluctantly gave his name as Edzie.

That the inspector produced no warrant authorising the arrest.

That I told the inspector that as the boy’s lawyer I wished to accompany him but this request was peremptorily refused and the boy was taken away.

[p.656] of [1968] GLR 646

That to the best of my knowledge, information and belief the boy can have committed no offence since the order of this honourable Court for his release, as from that time to the time of his re-arrest he was continuously in my care and control (except for the short time mentioned in paragraph (7) hereof and stayed in my house overnight.”

The reference to paragraph (7) is a reference, in the words of learned counsel who swore on oath to the affidavit: “He then went home, but returned about 2.30 p.m., in great fear and alarm to tell me that police officers in a car had come to his home searching for him and had taken away his aged father, the applicant herein, for questioning.”

It is interesting that there was and has been, so far as I can see, no denial of the charge of subversion. All that counsel, acting on behalf of the applicant in this case has done is to put in his affidavit his knowledge, information and belief that “the boy can have committed no offence.” As Lord Simonds put it in Christie v. Leachinsky [1947] A.C. 573 at pp. 591-592 H.L.:

“Blind, unquestioning obedience is the law of tyrants and of slaves:

….Arrested with or without a warrant the subject is entitled to know why he is deprived of his freedom, if only in order that he may, without a moment’s delay, take such steps as will enable him to regain it.”

The well-known Judges’ Rules afford, when properly applied when a person suspected of an offence is charged with an offence, an opportunity of denying that he has committed the offence at the time when he is charged. For the purposes of the instant case the boy was not charged with a specific offence. But when counsel asked a police officer the nature of a charge preferred or to be preferred against his client and was informed of such a grave charge as subversion, it is my view that though he or the suspected person is not bound to answer, it is desirable that, at least, the police are put in possession of some facts about denial so that they hesitate in pursuing an arrest. The question, therefore, which in my mind arises at this stage is whether the police officers dealing with this case were entitled at the time they arrested the applicant, so to do having regard to the deposition of counsel acting for the boy that the inspector produced no warrant authorising the arrest. The verb transitive “subvert” is defined by the Concise Oxford Dictionary (supra) at p. 1288 as “Overturn, upset. effect destruction or overthrow of” [p.657] of [1968] GLR 646 and the cognate expression “subversion” would then be construed accordingly.

Subversion in the context in which we are dealing would be, in my view, subversion against the State and that would be one of the most important matters in respect of which the police would seek to restrict or disturb the liberty of the individual with or without a warrant. There are numerous cases 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 and there is no need to cite any of them here. The proposition is well-known. In the circumstances, and since, as deposed by learned counsel acting on behalf of the applicant, the inspector replied that the arrest was for suspected subversion, I cannot say that on that ground and dealing with that ground only the detention under the circumstances was unlawful. It is pertinent perhaps in dealing with this matter at this stage to refer to a well-known statement from the Report of the Royal Commission on Police Powers and Procedure (Cmd. 3297 at pp. 1978-1979). This is what the extract says:

“The public would be the first to protest if the Police failed to pursue wrongdoers with energy and initiative. Criminals are often not the least intelligent members of the population, and their detection cannot for the most part be achieved without the exercise of patient and laborious investigation combined with prompt and energetic action. No responsible person would suggest that the Police should be unnecessarily hampered in the performance of the essential duty of bringing criminals to justice. The difficulty is to ensure that in the performance of this duty no arbitrary attitude or excess zeal on the part of the Police should interfere with the proper rights or liberties of the individual citizen. We do not suggest that any system could be devised which would ensure that in all cases the balance should be evenly held between the interests of justice on the one hand and the rights and liberties of the subject on the other hand. Every system is dependent upon the individuals who are called upon to administer it, and it is inevitable that in any large organisation there should be occasional lapses of conduct, or failure to appreciate the essential factor in some complicated and difficult situation. Moreover, a system is not to be judged by the happenings in a few isolated cases of a sensational nature which are apt to attract more than their fair share of publicity, but by the general results obtained over a long period … [p.658] of [1968] GLR 646

We cite this possible conflict between the interests of justice and the rights and liberties of the subject, as a convenient means of giving expression to the idea, deep-rooted in our political institutions, that the freedom of the individual must not be overriden unduly by claims advanced on behalf of the State, and we have given full weight to it in our deliberations. But we have found a tendency in some quarters to consider only the rights and liberties of persons suspected of having committed a crime, and to be unmindful of the fact that the crime itself has involved a serious invasion of the rights and liberties of some other person or persons. On this point it is pertinent to observe that, without the maintenance of law and order, no subject would enjoy any rights and liberties at all.” The suspected offence in respect of which it is sought to restrict the liberty of the son of the applicant is subversion. It is axiomatic to say that the greater includes the less. Liberty of the individual, yes. But when the security of the State is at stake will not the liberties of all of us be in jeopardy?

There was before me, however, evidence that the applicant in this case had appeared before my brother Anterkyi J. who had ordered his release: see p. 630 ante. This was not challenged by the learned Attorney-General. I therefore accept it as such and, of course, the records are there to show. There is authority for the proposition that where a prisoner or a person detained has been discharged from illegal custody on a habeas corpus he cannot again be imprisoned or committed for or in respect of the same offence. He is, however, not privileged from being immediately re-arrested on a criminal process in relation to some matter other than that in respect of which he has been discharged. Again he is privileged from re-arrest on civil process whilst returning to his place of abode from the court discharging him. There is no evidence before me and nothing has been said by counsel as to what the offence was in respect of the arrest which led to the order made by my brother Anterkyi J. What is the evidence before me? It is, as has been deposed to in the affidavit to which I have referred that the inspector replied that, the arrest was for suspected subversion which in my view would be a criminal offence having regard to the definition of subversion as I have quoted from the Concise Oxford Dictionary (supra). In R. v. Governor of Brixton Prison: Ex parte Stallmann [1912] 3 K.B. 424, D.C. a prisoner, a German subject, was discharged from custody upon directions given by the High Court of Judicature in India in the nature of habeas corpus on the ground that his

[p.659] of [1968] GLR 646 detention was illegal in consequence of an informality in the course of the proceedings before a magistrate for the extradition of the prisoner from India to Germany. It was held that the prisoner could be re-arrested in England and committed by a magistrate for extradition to Germany in proceedings validly conducted before him upon the same charge as that which formed the subject of the invalid extradition proceedings in India. This case has been held as being valid for the proposition that there is no ground for discharge from custody under a second valid warrant merely because the prisoner has been previously discharged on habeas corpus from an unlawful imprisonment. There is also authority for the proposition that where a person has been discharged on habeas corpus and after discharge he is again arrested for the same cause or upon the same grounds or pretext an attachment will be granted against the party causing him to be so arrested. As I have already indicated there is no evidence before me that the boy in this case was re-arrested for the same cause or upon the same grounds as that on which the first application for the writ of habeas corpus was made. All that Mr. Cletus Kwasi Amoah deposed to in his affidavit was a recital of what happened on 8 July 1968 and has not referred, in his affidavit, to the offence or suspected offence in respect of which the boy Salifa was then detained. The issue of the writ of habeas corpus is now governed substantively by the Habeas Corpus Act, 1964 (Act 244). Section 5 of the Act states as follows: “An appeal shall lie to the Supreme Court, in any proceedings under this Act, against an order for the release of the person detained as well as against the refusal of such an order.” The application before me is brought under the Habeas Corpus Act, 1964, and one would have thought that if the order made by my brother Anterkyi J. did not put an end to the matter then section 5 of the Act could be called in aid; it is not for me to advise on that aspect of the matter. Be that as it may, the matter before me is in respect of the fresh detention or re-arrest as is being contended by Mr. Lynes, upon the issue or purported issue of a Decree signed by the Chairman of the National Liberation Council. Unfortunately the Habeas Corpus Act, 1964, does not say anything about the procedure to be followed save in this respect by section 4 (1) that: “4. (1) The High Court shall,.. 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.”

[p.660] of [1968] GLR 646

Since the matter is governed now by the Habeas Corpus Act 1964, it seems to me that the provisions of the Habeas Corpus Act 1679 (31 Cha. 2, c. 2), of the United Kingdom Parliament which gave rise to the authorities I have cited earlier are not applicable in this country; and if anything the law following therefrom can be no more than perhaps guide lines or principles which we may follow. One would wish that the Act has said something about arrests and re-arrests; but then Parliament in its wisdom cannot be said to be so clairvoyant as to foresee possible cases that might come up under a piece of legislation it enacts. I am thus left with a situation in which I have now to consider the merits and demerits, indeed the legality of the document signed by the Chairman of the National Liberation Council and made on 9 July 1968 and entitled the National Liberation Council (Protective Custody) (Consolidation) (Amendment) (No. 13) Decree, 1968. This document purports to amend an earlier Decree by the insertion at the end of the Schedule to that earlier Decree of the words “Mohamed Abdurahim Salifu alias Baba Alhaji.” The name used in the document is not the same as used in the documents relating to the application for the issue of the writ of habeas corpus. No argument, however, has been raised before me that there is a question of a mistaken identity. I therefore accept, for the purposes of the application, that the person named in the document as “Mohamed Abdurahim Salifu alias Baba Alhaji” is the same person referred to in the documents relating to the application for the writ of habeas corpus as “Mohamed Abdul Rahim Baba Salifa.” It is contended that this document does not comply with the provisions of paragraph 3 of the Proclamation entitled “Proclamation for the Constitution of a National Liberation Council for the Administration of Ghana,” under which Proclamation the authority of the National Liberation Council to govern this country is not being challenged. In other words the position of the National Liberation Council is well established de facto and de jure. What is being substantially raised is that the National Liberation Council has itself set a limit on its law making power, that is, its right to make and issue Decrees which shall have the force of law in Ghana. These limitations are contained, it is contended, in sub-paragraphs (4), (5), (6), (7), (8), (9), (10) and (II) of paragraph 3 of the said Proclamation as it has been amended. Under paragraph 3 (4) a Decree made by the National Liberation Council could be amended or revoked or suspended by another Decree of the Council. This, it is argued by the learned Attorney- General, means that the National Liberation Council can amend

[p.661] of [1968] GLR 646 or revoke or suspend a Decree made by itself and the council cannot be tied down to observe the other provisions of this paragraph relating to the making and issuing of Decrees. On the face of it this contention has some merit for if it was the intention that all Decrees made by the National Liberation Council should comply with the other provisions of this paragraph the expression “subject to the other provisions in this paragraph” or “subject to the next succeeding provisions of this paragraph” ought to have been used to indicate that the provisions of the said sub-paragraph (4) that “Any decree made by the National Liberation Council may be amended or revoked or suspended by another decree of the Council” should be read with caution in that it is not complete in itself, and cannot be interpreted or construed without reference to other parts of the same paragraph which lays down certain principles or provisions relating to the making and issuing of Decrees. But there is also another well-known principle of interpretation and construction of an Act of Parliament that in construing an Act of Parliament the Act should be read as a whole which is spoken of as construction ex visceribus actus, that is, within the four corners of the Act. I am quite sure that it cannot be seriously challenged that in the situation in which we find ourselves in Ghana today a Decree made by the National Liberation Council is in the nature of an Act of Parliament whose supremacy is acknowledged and therefore Decrees of the National Liberation Council should be interpreted and construed in accordance with the well-known principles for the construction and interpretation of an Act of Parliament. It is stated in Craies on Statute Law (6th ed.), P. 98 that:

“‘The office of a good expositor of an Act of Parliament,’ said Coke in the Lincoln College Case ((1595) 3 Co.Rep. 58b), ‘is to make construction on all parts together, and not of one part only by itself-Nemo enim aliquam partem recte intelligere potest antequam totum iterum atque iterum perlegerit.’ And again he says (1 Inst. 381 1 b): ‘It is the most natural and genuine exposition of a statute to construe one part of a statute by another part of the same statute, for that best expresseth the meaning of the makers … and this exposition is ex visceribus actus’.” But this rule of construction is never allowed to alter the meaning of what is of itself clear and explicit and Jessel M.R. said in Bentley v. Rotherham and Kimberworth Local Board of Health (1876) 4 Ch.D. 588 at P. 592:

[p.662] of [1968] GLR 646

“there is no doubt a rule, applicable to Acts of Parliament as well as to other legal instruments, that you may control the plainest words by a reference to the context. But then, as has been said very often, you must have a context even more plain, or at least as plain … as the words to be controlled.”

The provisions of the said paragraph 3 which are pertinent to the present exercise are sub-paragraphs (6), (7), (9), (10) and (11). To take paragraph 3 (11) first: All that this provision says is that where a document purports to have been printed or published by the Government Printer, now the General Manager of the State Publishing Corporation, that document when published and purporting to be a Decree of the National Liberation Council should be considered as a prima facie evidence of the due making thereof. In this case there is no printed copy and, save in using that provision to support arguments relating to the other provisions of the said paragraph 3, my view is that this paragraph is not all that pertinent to the present exercise. Paragraph 3 (10) requires a Decree made by the council to have a short title which would be sufficient by way of citation to identify the Decree. The document before me has a short title and therefore is within the provisions of this paragraph. But there is also another requirement in this sub-paragraph which requires a number which could also be used to identify the Decree. This sub-paragraph therefore provides for two alternatives; the first is the short title which could be used in citation to identify the Decree or a number allotted to the Decree on publication which can be used to identify the Decree. The document before me has no such number. It is not a copy from the General Manager of the State Publishing Corporation. It is the original Decree, so says the Attorney-General. But I do not think that the absence alone of the number takes it outside the operation of sub-paragraph (10) since, as I have said, it has a short title. Paragraph 3 (9) is a mandatory provision which states that:

“3. (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 numbering shall not begin afresh at the commencement of a calendar year or any other period.”

On behalf of the applicant it has been strongly urged upon this court by his learned counsel that as there is no number on the document produced to the court by the learned Attorney-General the court must not accept that document as a Decree. As against this it is argued on behalf of the Director of the Special Branch [p.663] of [1968] GLR 646 that a Decree made by the National Liberation Council need not be published and that there is no requirement in the Proclamation which requires every Decree of the National Liberation Council to be published. Indeed paragraph 3 (9) omits the word “every.” It does not say that “Every decree of the National Liberation Council shall be numbered.” It says “Decrees made by the Council shall be numbered.” Indeed paragraph 3 (6) clearly says that “Every decree made by the National Liberation Council shall, as soon as practicable after it is made, be published in the Gazette.” If sub-paragraphs (6) and (9) are read together, in my view, “Decree” as used in sub-paragraph (9) should be read as “Every decree.” It has been strenuously argued by learned counsel for the applicant that the document which was produced by the learned Attorney- General is not a Decree because it has not been published. But reading again paragraph 3 (6) I find that the words “as soon as practicable after it is made” must be given some meaning. They are very important words. What meaning can be given to these words? It is my view that this paragraph makes it possible for a Decree to come into force and be operated or administered even though it has not been published in the Gazette. This, in my view, is reinforced by paragraph 3 (7) which states: “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.” Here again the words “unless otherwise provided in that decree” are very important and must be given some meaning: words are not used in legislation for the fun of it and it is accepted that in construing legislation effect must be given to all the words that there are in it. What then do the words “unless otherwise provided in that decree” mean. They mean, in my view, that a Decree can come into force by some other way or mode of publication or even on some other day other than publication in the Gazette. In other words a retroactive date could be put in a Decree and if a Decree is made to operate retrospectively it cannot be said that it had been published in the Gazette on the date of its coming into operation. Equally a date can be given in a decree which has not yet arrived as the date of the coming into force of the Decree even though it is published in the Gazette on the particular date before the date stated in the Decree as the date of its coming into operation. Looking at the document which was produced to the court by the learned Attorney-General I find that paragraph 2 reads as follows:

“This decree shall be deemed to have come into force on the 8th day of July, 1968 and notwithstanding the provisions of paragraph 3 of the Proclamation for the Constitution of the

[p.664] of [1968] GLR 646

National liberation Council published in Gazette No. 11 of 28th February, 1966, (as amended by paragraph 16 N.L.C.D. 73) 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.”

In my view this provision of this document does not infringe the Provisions of sub-Paragraphs (6) and (7) of the said paragraph 3 and it cannot be considered to be inoperative because it has not been published in the Gazette. There is nothing on the face of the document which says that it shall not be published. All that it says is that its operation is retrospective and being retrospective “shall be deemed so have come into force notwithstanding that it has not been published in the Gazette.” Perhaps it will not be out of place if I make some comparison with the publication of an Act of Parliament. I am here again relying on the well-known principle of construction that reference could be made to an earlier enactment in order to interpret a piece of legislation. The Acts of Parliament Act, 1960 (C.A. 7), has this to say in respect of the commencement of an Act of Parliament.

“11. (1) Except so far as may be otherwise provided in an Act, the Act shall come into operation at the commencement of the day following the day on which the President’s assent is signified.

(2) A provision in an Act regulating the coming into operation of the Act or any part thereof shall have effect notwithstanding that the part of the Act containing the provision has not come into operation.”

A comparison between the provision quoted from the Acts of Parliament Act, 1960, and paragraph 3 of the Proclamation which National Liberation Council now governs the country with power, to make and issue Decrees clearly shows, in my view, that it is the intention that a Decree could become operative and acted upon before its publication.

As I have already indicated the words “as soon as practicable” in paragraph 3(6) can only mean that a Decree issued by the National Liberation Council cannot be said to be ineffective unless it has been published in the Gazette and a number assigned to it. I reiterate that it means what it says, that it may not be possible to publish it immediately before an action is taken under it but steps should be taken as soon as may be practicable to have it published and numbered. Another matter which requires some consideration is whether it can be said that the Decree having been made, that is, having

[p.665] of [1968] GLR 646 been signed, has been issued. In other words what is the meaning of the word “issue”’ in Paragraph 3 (1)? lf my interpretation or my understanding of the position is correct then the word “issue” would in the context of the present circumstances appear to mean the operation of the Decree even though it has not been published. Publication as we know has its peculiar meaning in law as witness publication in a case of defamation. This, then is the law as I see it. I hold as a valid Decree the document given to me by the learned Attorney-General. There is no evidence before me that it is not intended that it shall not be published. Having regard, however, to my remarks about the words “as soon as practicable after it is made” which are found in sub-paragraph (6) and the words “unless otherwise provided that decree” used in sub-paragraph (7) of the said Proclamation, I cannot say that the lack of publication in the Gazettee in this case makes void or unenforceable the Decree properly made. I must reluctantly dismiss the application. I would like however, to draw the attention of the learned Attorney-General and learned counsel for the applicant to the following passage from Lord MacDermott’s Protection from Power at p. 7 in the Hamlyn Trust Lectures (Ninth Series) which no doubt they know all too well:

“The law, in its substance and procedure, should be such as to preserve public order effectually. This is a first task. Its due discharge will not necessarily keep the country virtuous or prevent its decline, but internal peace and security are essential if the members of this or any other community are to have a proper opportunity of defending themselves and of fostering that capacity to cohere and to develop their institutions without which a country cannot attain its full stature. What is required for this purpose is a reasonably certain body of positive, enforcement law. I venture this platitude because the current international situation has produced much confusion as to the nature of the law that binds a people together. Many nowadays seem, to think that a stable world government may be built on a foundation of expediency and power politics and that the same sort of mixture should serve our national requirements. At a time when the Assembly of the United Nations can be regarded by some as a court of justice, others may be pardoned for failing to grasp that our personal liberties as citizens of this Kingdom depend on a very different conception of what law is, on the kind of law that lays down its standards of conduct and enforces them fairly against those who transgress. [p.666] of [1968] GLR 646

The law should also enshrine the ‘rule of law.’ This is the badge of a free people. The full significance of the expression is hard to catch accurately in words: but it stands for equality (or at least a very high degree of equality) before the law, for the independence of the courts, for the absence of arbitrary government and for established sources of law. It prefers the individual to the State and suffers whenever the normal freedoms and liberties of the former are curtailed without just cause. The law, as a whole, should stand for what is morally superior. Its purposes and consequences should contain a substantial element of what is fair and just and of good report. As the law must, in general, be uniform if it is to rule all, it cannot be invariably fair and just to the individual; and what is of good report is often very much a matter of opinion. We should not expect a vigorous community to think alike about all the purposes of the law any more than we expect all the parties to a suit to be pleased with the decision of the court. In this Kingdom, however, I believe it is true to say that when everything that is contentious and debatable is taken out of the way, there remains a remarkably wide and firm unanimity as to what is fair and just and good. If the law is to advance the best interests of those whom it serves it cannot afford to ignore this powerful body of basic public opinion. If it does and the divergence becomes marked, the law falls out of respect, standards decline and the rule of law grows vulnerable. But if, on the other hand, the law continues to reflect this basic common view, standards should tend to rise and the nation should want to reach forward.” I make no order as to costs.

DECISION

Application dismissed.

D. R. K. S.