AMPONSAH AND ANOTHER vs. MINISTER OF DEFENCE AND ANOTHER IN RE THE PREVENTIVE DETENTION ACT, 1958 AND IN RE AMPONSAH AND ANOTHER AND IN RE AN APPLICATION FOR A WRIT OF HABEAS CORPUS AD SUBJICIENDUM [1960]DLCA50

AMPONSAH AND ANOTHER vs. MINISTER OF DEFENCE AND ANOTHER IN RE THE PREVENTIVE... [1960]DLCA50

Date	1960-06-06
Suit No.
Citation No.	[1960]DLCA50

KORSAH C.J

VAN LARE J.A.

OLLENNU J.

DANQUAH FOR APPELLANTS

AMISSAH FOR RESPONDENTS.

[1960]DLCA50
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													<main id="main" class="content" style="min-height: 60rem" >AMPONSAH AND ANOTHER<o:p></o:p>&nbsp;vs. <o:p></o:p>MINISTER OF DEFENCE AND<o:p></o:p>ANOTHER IN RE THE PREVENTIVE DETENTION ACT, 1958 AND IN<o:p></o:p>RE AMPONSAH AND ANOTHER AND IN RE AN APPLICATION FOR<o:p></o:p>A WRIT OF HABEAS CORPUS AD SUBJICIENDUM<o:p></o:p>&nbsp;[COURT
OF APPEAL]<o:p></o:p>[1960] GLR 140<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DATE:
6TH JUNE, 1960.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DANQUAH FOR APPELLANTS.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

KORSAH C.J., VAN LARE J.A. AND OLLENNU
J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF KORSAH, C.J.<o:p></o:p>Korsah,
C.J. delivered the judgment of the court. The appellants having been detained
under section 2 (1) of the Preventive Detention Act, 1958 applied to Simpson
J., sitting in the Divisional Court, Accra, for a writ of habeas corpus ad
subjiciendum directed to the Minister of Defence and to the Director of
Prisons, to show cause why the said detainees should not be released. The
learned judge having refused to make the order prayed for, the instant appeal
to this court has been lodged against the Divisional Court’s decision.<o:p></o:p>Dr.
Danquah, counsel for appellants, has objected to this court as presently
constituted with van Lare, J.A. as a member thereof. Dr. Danquah submits that
this matter being one of two appeals of the same character, the first of which
had been disposed of by a court constituted by three judges of whom van Lare,
J.A. was one, it is not competent for van Lare J.A. to be a member of this
court for the hearing of what counsel describes as the second of the two
appeals. Counsel further submits that the judgment of the court in the first
appeal (which was read by van Lare J.A.) went beyond the matter argued before
that court—that is to say, the question of the jurisdiction of the Appeal Court
to entertain that appeal — and made a declaration as to the right to habeas
corpus in any matter arising under the Preventive Detention Act, 1958.<o:p></o:p><o:p>&nbsp;</o:p>This is
not borne out by the said judgment. In our view that judgment makes no such
declaration, and the objection was over-ruled by us, as we did not consider
that van Lare, J.A. has any interest whatsoever in the matter before the court,
so as to raise the question whether it was competent for him to sit as a member
of this court, or to make it necessary for him to advise himself whether it
would be proper for him to do so. To justify an allegation of interest or bias
against a judicial officer it must be established that he in fact has some
interest in the subject-matter, or has such foreknowledge of the facts as to
make it impossible for him to adjudicate upon the matter with an independent
mind, and without any inclination or bias towards one side or the other in the dispute.
The only question which (according to counsel) was argued in the former appeal
being the objection to the jurisdiction of the Court of Appeal to entertain
that appeal, it cannot be contended that a member of that court would be
disqualified to sit as a member of this court when a preliminary objection to
the jurisdiction of the court to entertain another such appeal was raised. Very
often a judge has to adjudicate in a number of cases of the same character, and
involving the same legal issues. It cannot be disputed that a judge is
competent to entertain and determine the same issue of law as often as it may
be raised before him. It is absurd to suggest that because a ruling on a
question of law has been given by a Court of Appeal, therefore a member of that
court is thereby “biased by interest “, and becomes disqualified and not
competent to sit as a member of the court on some further occasion when the
same question of law is to be raised.<o:p></o:p><o:p>&nbsp;</o:p>We now
proceed to deal with the Crown’s preliminary objection, of which notice had
been given before the date fixed for the hearing of this appeal. It reads:
“That no appeal lies to the Court of Appeal from a refusal by a Judge of the
Divisional Court to grant a writ of habeas corpus ad subjiciendum.”<o:p></o:p><o:p>&nbsp;</o:p>