STATE vs. GENERAL OFFICER COMMANDING THE GHANA ARMY; EX PARTE BRAIMAH [1967]DLCA1543

Date	1967-04-03
Suit No.
Citation No.	[1967]DLCA1543

AKUFO-ADDO C.J.

OLLENNU JA

AZU CRABBE JA

APALOO JA

LASSEY J.A.

VICTOR OWUSU ATTORNEY-GENERAL (WITH HIM J. N. K. TAYLOR

DIRECTOR OF PUBLIC PROSECUTIONS) FOR THE APPELLANT.

AMOFA FOR THE RESPONDENT.

[1967]DLCA1543
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													<main id="main" class="content" style="min-height: 60rem" >STATE<o:p></o:p>&nbsp;vs. <o:p></o:p>GENERAL OFFICER COMMANDING THE GHANA ARMY; EX PARTE BRAIMAH <o:p></o:p>[COURT OF APPEAL (FULL BENCH)]<o:p></o:p>[1967] GLR 192<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
3 APRIL 1967<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">

VICTOR OWUSU, ATTORNEY-GENERAL, (WITH HIM J. N. K.
TAYLOR,<o:p></o:p>

DIRECTOR OF PUBLIC PROSECUTIONS) FOR THE APPELLANT.<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">

AKUFO-ADDO C.J., OLLENNU, AZU CRABBE, APALOO
AND LASSEY JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF AKUFO-ADDO C.J.<o:p></o:p>Akufo-Addo
C.J. delivered the judgment of the court. This is an appeal by the General
Officer Commanding the Ghana Armed Forces against an order of Anterkyi J. in
the High Court, Accra, granting the respondents’ (Yusufu Iteriba Aminu’s)
application for a writ of habeas corpus and ordering his release from custody.
The appeal came before us on 3 March when after hearing counsel’s argument we
allowed it, reversed the order of Anterkyi J. aforesaid and reserved our
reasons for the judgment.<o:p></o:p><o:p>&nbsp;</o:p>The
respondent, a Nigerian national resident in Ghana, was arrested on 3 January
1967 by the army authorities on suspicion Of having committed the offence of
stealing. The army authorities acted in pursuance of the provisions of the Law
Enforcement (Powers of the Army) Decree, 1966 (N.L.C.D. 109), which gave to the
army authorities the same powers of arrest and prosecution as are vested in the
police under the Criminal Procedure Code, 1960 (Act 30), the Police Service
Act, 1965 (Act 284), and the Public Order Act, 1961 (Act 58).<o:p></o:p><o:p>&nbsp;</o:p>On 4
January 1967, the Attorney-General gave his consent in writing for the
detention of the respondent for a period of 28 days beginning from 4 January
1967. The Attorney-General was acting under the provisions of the Criminal
Procedure Code (Amendment) Decree, 1966 (N.L.C.D. 93), which amended section 15
of the Criminal Procedure Code, 1960, by adding the following subsection
thereto:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“(5).
Notwithstanding anything to the contrary, a person taken into custody without a
warrant may, with the consent in writing of the Attorney-General, beheld in
custody for a period of twenty-eight days or such other period as the Attorney-General
may determine and the provisions of section 96 of this Code (relating to bail)
shall not apply to a person so held.”<o:p></o:p>The
period of 28 days expired on 1 February 1967 and on that day the
Attorney-General issued another consent in writing for the detention of the
respondent for a further period of 28 days as from 1 February 1967.<o:p></o:p><o:p>&nbsp;</o:p>On 7
February 1967, the respondent, by his nephew, Yaya Aminu Braimah, applied to
the High Court, Accra, for a writ of habeas corpus for the release of the
respondent from custody on the ground that the Attorney-General had no power to
give consent, once the respondent had completed the original 28 days in
custody, for the further detention of the respondent. The respondent’s counsel
contended that his ground was based on a true and proper construction of the
provisions of N.L.C.D. 93 (i.e., section 15 (5) of the Criminal Procedure
Code). The respondent’s case therefore was that his detention as from 1
February 1967 was unlawful. As already stated, Anterkyi J. accepted the
respondent’s view of the law and ordered his release.<o:p></o:p><o:p>&nbsp;</o:p>The basic
point involved in this appeal, namely, the construction to be placed on the
provisions of N.L.C.D. 93, that is, section 15 (5) of Act 30, falls within a
relatively small compass, and does not appear to present much difficulty.
Indeed we did not have any difficulty in accepting the submission of the
Attorney-General advanced in support of his right to issue any number of
written consents for the detention of a suspected person as often as it became
necessary to do so. The Attorney-General referred to section 10 (1) and (2) of
the Interpretation Act, 1960 (C. A. 4), which are in substance a reproduction
of section 32 (1) of the English Interpretation Act, 1889 (52 &amp; 53 Vict.,
c. 63), and which is in</main>