REPUBLIC v. ATTORNEY-GENERAL; EX PARTE QUAYE MENSAH AND ANOTHER
1979
COURT OF APPEAL
GHANA
CORAM
- ANNAN
- CHARLES CRABBE JJ.A.
- EDWARD WIREDU J
Areas of Law
- Constitutional Law
- Human rights Law
- Administrative Law
- Civil Procedure
- Evidence Law
1979
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The Court of Appeal of Ghana considered habeas corpus applications involving the detention of Quaye Mensah, an 82‑year‑old blind and asthmatic man, and Davis Kwakye at Ho Prisons under Preventive Custody (No. 5) Order, 1978 (E.I. 38) and Preventive Custody (No. 6) Order, 1978 (E.I. 42). The High Court (Andoh J.) had dismissed their application based on a report that merely cited the executive instruments. On appeal, Charles Crabbe J.A. emphasized that accurate identity is essential (David versus Davis), placing the burden on detaining authorities to prove identity through clear evidence. He held that section 2(b) of the Habeas Corpus Act requires a return stating factual grounds and particulars, not a bare recital of instruments, and questioned textual departures between the instruments and the parent Preventive Custody Decree (the Decree’s "they" and "or" versus the instruments’ "Council" and "and"). He cautioned against wartime deference rooted in Liversidge v Anderson. Annan J.A. and Edward Wiredu concurred. The appeal was allowed; the detentions were declared unlawful.
JUDGMENT OF CHARLES CRABBE J.A.
This case, civil appeal No. 104/78 began its course in these courts as an application for an order for:
“a writ of habeas corpus ad subjuciendum to issue directed to the Attorney-General and the Assistant Director, Ghana Prisons Service, Ho, to have the bodies of Quaye Mensah and Davis Kwakye before the High Court, Ho, to undergo and receive all and singular such matters and things as [that] court shall there and then consider concerning [the two persons]."
In the affidavit supporting the application for the writ it is stated:
"That the applicants were variously arrested between 5 to 14 April 1978. That they have since their arrest been kept in prison for reasons which have not been sufficiently disclosed. That presently, the applicants namely Quaye Mensah and Davis Kwakye are being kept at the Ho Prisons. That to the best of my information it is being [p.432] alleged that the applicants are being kept in prison for their own safety. That the lives of the applicants have never been in danger and they have never requested any such protection. That the applicants have not done anything to warrant their being kept in prison . . ."
Leave was granted. There was a supplementary affidavit in the following terms:
"That since the swearing of the [original] affidavit new facts have come to the knowledge of my principal in respect of the first applicant, Quaye Mensah, to which facts I have been authorised to depose in this supplementary affidavit. That the said first applicant was arrested at his house at Alarjo, a suburb of Accra on Wednesday 5 April 1978 at about 7.30 p.m. That the said arrest was effected by one Superintendent Abraham C. Ofei of Tesano Police Station, Accra. That on the arrest of the first applicant herein the said superintendent said that the said applicant was being wanted at the Tesano Police Station for interrogation by a panel of investigators without stating what crime or offence the said applicant had committed. That the first applicant, a blind man and an asthmatic patient, aged 82 years, was therefore without any sympathy taken to the Tesano Police, Station, Accra, for apparently no just cause. That at the said police station the said applicant was detained without any interrogation. That I am informed that he was taken that very night to Achimota Police Station where he passed the night. That on the following day his son, Abdul Jelil Quaye of Accra visited him and discovered that his health h