REPUBLIC vs. ASSISTANT DIRECTOR OF PRISONS; EX PARTE DAGOMBA AND OTHERS [1978]DLHC1175

Date	1978-02-28
Suit No.
Citation No.	[1978]DLHC1175

AGYEPONG J.

ADUMUA-BOSSMAN (WITH HIM NELSON-COFIE JOHNNY HANSON

NANA AKUFO-ADDO AND T. TSIKATA) FOR THE APPELLANTS.

GYEKE-DAKO

DIRECTOR OF PUBLIC PROSECUTIONS (WITH HIM OSAFO SAMPONG SENIOR STATE ATTORNEY) FOR THE RESPONDENT.

[1978]DLHC1175
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													<main id="main" class="content" style="min-height: 60rem" >REPUBLIC <o:p></o:p>vs.<o:p></o:p>ASSISTANT DIRECTOR OF PRISONS; EX PARTE DAGOMBA AND OTHERS<o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>&nbsp;[1979] GLR 1<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:
28 FEBRUARY 1978<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">

ADUMUA-BOSSMAN (WITH HIM NELSON-COFIE, JOHNNY
HANSON, NANA AKUFO-ADDO AND T. TSIKATA) FOR THE APPELLANTS.<o:p></o:p>

GYEKE-DAKO, DIRECTOR OF PUBLIC PROSECUTIONS (WITH
HIM OSAFO SAMPONG, SENIOR STATE ATTORNEY) FOR THE RESPONDENT.<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">

AGYEPONG J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF AGYEPONG J.<o:p></o:p>The
applicants are detainees incarcerated in Nsawam Medium Security Prisons under
the Preventive Custody Decree, 1972 (N.R.C.D. 2), s. 2, which provides:<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">“2. The
National Redemption Council may, by executive instrument authorise the arrest
and detention of any other person in respect of whom they are satisfied that it
is in the interest of national security or in the interest of the safety of the
person so to do and any such instrument may amend or repeal the Schedule to
this Decree.”<o:p></o:p><o:p>&nbsp;</o:p>By
section 1 of the said Decree certain named persons, being political figures of
the civilian government that was overthrown by the National Redemption Council
on 13 January 1972, were to be taken into protective custody. While the
detention of the people in section 1 of the Decree was geared towards the
stabilisation of the new military government, it is apparent from section 2
that the detention of the people under that section was not geared towards the
stabilisation of the new military government.<o:p></o:p><o:p>&nbsp;</o:p>The
applicants challenge the legality of their detention and in answer thereto the
respondent has produced executive instruments promulgated by the Supreme
Military Council (formerly the National Redemption Council) under section 2 of
N.R.C.D. 2 covering the detention of the applicants. (The court has already
ordered the release of 175 of the applicants whose detention was not backed by
executive instruments.) The applicants say the mere production of the executive
instruments before the court is not sufficient justification in law for the
detention of the applicants; the return is woefully inadequate; and. it must
contain the reasons for which the Supreme Military Council is satisfied that it
is in the interest of national security and in the interest of his safety that
each applicant has been detained; the applicants submit that the court has
power to go behind the statement of satisfaction to see if there existed facts
upon which the satisfaction could properly be based, relying on State v.
General Officer Commanding the Ghana Army; Ex parte Braimah [1967] G.L.R. 192,
C.A. (full bench) where the court called for, and inquired into, the reasons
for the continued detention of the applicant after the expiry of the 28 days
initially provided by the Criminal Procedure Code, 1960 (Act 30), s. 15 as
amended by the Criminal Procedure Code (Amendment) Decree, 1966 (N.L.C.D. 93).<o:p></o:p><o:p>&nbsp;</o:p>Learned
counsel for the applicants, Nana Akufo-Addo, rightly reminded the court that
articles 15 and 173 of the 1969 suspended Constitution were still in force, and
contended that N.R.C.D. 2 cut across certain fundamental common law principles,
that is (a) the principle that the person against whom an allegation is
levelled must be given an opportunity to answer the allegation and (b) the
requirement that the exercise of the power should be fair and reasonable. The
validity of N.R.C.D. 2, s. 2 itself, or of the executive instruments made
thereunder, was not seriously challenged, if at all, by the applicants.<o:p></o:p><o:p>&nbsp;</o:p>The
learned Director of Public Prosecutions, Mr. Gyeke-Dako, counsel for the
respondent, replied that the executive instruments covering the detention of
the applicants were not ordinary delegated legislation, but special subsidiary
legislation by which the Supreme Military Council exercised its discretionary
power to authorise detention under N.R.C.D. 2, s. 2. In the submission of the
Director of Public Prosecutions, the mere production of the executive
instruments was sufficient justification for the detention, and the language of
the Decree took away from the courts any jurisdiction to inquire into the
grounds of the satisfaction of the Supreme Military Council.<o:p></o:p>