1960
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The appellants, detained under the Preventive Detention Act, 1958, appealed the Divisional Court's refusal to grant a writ of habeas corpus. They questioned the competence of van Lare, J.A., on grounds of bias, which was dismissed as unfounded. The Court also determined that it had no jurisdiction to hear the appeal based on statutory limitations enshrined in the Court of Appeal Ordinance, 1957. Consequently, the appeal was dismissed, and the court highlighted the need for legislative consideration for a right of appeal in such cases.
JUDGMENT OF KORSAH, C.J.
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.
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.
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