1936
DIVISIONAL COURT (COLONIAL)
GHANA
CORAM
AI Generated Summary
Chief Justice Petrides addressed an application for habeas corpus challenging the jurisdiction under which an applicant was detained. Counsel for the respondent argued that because the commitment appeared regular, evidence by affidavit was inadmissible to show that the alleged offence was committed outside the committing magistrate’s jurisdiction. Petrides reviewed treatise authorities, noting that Halsbury’s Laws, First Edition, overstated the rule, and that the Second Edition and Short & Mellor’s Crown Practice allow affidavits to prove extrinsic, collateral jurisdictional facts and a total want or excess of jurisdiction, while prohibiting controverting facts found by a competent court. Finding the applicant’s affidavit admissible to show lack of jurisdiction, but faced with conflicting affidavits and a prior refusal by the Commissioner’s Court at Mampong-Akwapim after a visit to the locus in quo, the Court agreed that an independent person should inspect the site to determine whether it lies in the Shai State. The application was adjourned sine die and the applicant was released on bail, with liberty to apply.
The following ruling was delivered:-
Petrides, C.J.
Counsel for respondent has contended that the commitment being regular on the face of it, evidence by affidavit or otherwise was inadmissible to show that the alleged offence was not committed within jurisdiction.
In ro Halsbury, 1st Edition, page 70, para. 145, it is stated:-
"On the return affidavits will not generally be allowed to show that the " sentence of the Court under which the prisoner is detained was passed by
" the Court without jurisdiction. Nor can the question be raised by affidavit "showing that an alleged offence was not committed within the jurisdiction " of the committing magistrate."
I do not consider that this is an accurate statement of the law and practice on the point. In the 2nd Edition of Halsbury the inaccuracy of this statement appears to be recognized. In Vol. 9 of this Edition it is stated at the end of paragraph 1254, that "Although the Habeas Corpus Act, 1816, enables the return to be " controverted, and a total absence of jurisdiction, or matters in excess " of jurisdiction, may be alleged and proved by affidavit, facts " alleged on the return which were within the jurisdiction of a "Court cannot be controverted," and in note (c): "It would seem " that affidavits may be admissible to show that there was no juris"diction in the Court by which the prisoner was convicted" (Re Bailey (1854), 3 E. & B. 607; 16 Digest, 254, 557; Re Baker (1857), 2 H. & N. 219; 16 Digest, 254, 558; Re Authors (1889), 22 Q. B. D. 345, at p. 350; 16 Digest, 254, 559; but see Brenan and Galen's case (1847), 10 Q. B. 492; 16 Digest, 265, 725; Re Newton (1855), 16 C. B. 97; 16 Digest, 254, 550; Re Smith (1858), 3 H. & N. 227, per Martin, B., at p. 234; 16 Digest, 260, 742 (cases in which such affidavits were held not to be admissible)).
At p. 328 of Short & Mellors' Crown Practice, it is stated that under the Habeas Corpus Act, 1816, " affidavits are not admissible " to controvert facts found by the judgment of a Court of competent " jurisdiction, though they may be received to show some extrinsic "collateral matter essential to jurisdiction, or to show a total want " or excess of jurisdiction."
In my judgment the affidavit showing total want of jurisdiction is admissible. As this affidavit has been controverted by the respondent's affidavit which shows that an application to the Commissioner's Court, Mampong-Akwapim, for a writ of habeas corpus was refused by the Court, because the Commissio