REPUBLIC v. DIRECTOR OF PRISONS AND OTHERS; EX PARTE WILLIAM OFORI-ATTA AND OTHERS
1978
HIGH COURT
GHANA
CORAM
- AGYEPONG J
Areas of Law
- Administrative Law
- Constitutional Law
- Human rights Law
1978
HIGH COURT
GHANA
CORAM
AI Generated Summary
Agyepong J. confronted two questions: the scope of the Preventive Custody (Release) Instrument, 1978 (E.I. 46) and the validity of its Amendment Instrument, 1978 (E.I. 66). The first and second applicants were detained under E.I. 38 from 5 April 1978, and the third under E.I. 44 from 20 April 1978. Invoking paragraph 2 of E.I. 46, applicants’ counsel, Mr. Joe Reindorf, argued that the phrase “since 1974” required their release; the Director of Public Prosecutions, Mr. Gyeke‑Darko, argued it applied only to those detained in 1974 and still detained on 25 April 1978. Finding “since” ambiguous, the judge consulted earlier release instruments (E.I. 11 and E.I. 12) and the principle from R. v. Titterton to ascertain S.M.C.’s intent. He held E.I. 46 covered only 1974 detainees, not the applicants. Turning to E.I. 66, the court treated it as an explanatory instrument, relying on Interpretation Act section 10(2), and overruled the invalidity challenge.
JUDGMENT OF AGYEPONG J.
After hearing counsel on both sides, I think what I have to decide is: (1) what is the effect of the Preventive Custody (Release) Instrument, 1978 (E.I. 46 of 1978), on the detention of the applicants after the date of the promulgation of that executive instrument? (2) Is the Preventive Custody (Release) (Amendment) Instrument, 1978 (E.I. 66 of 1978), a valid instrument?
It is common ground that the first and second applicants were detained under the Preventive Custody (No. 5) Order, 1978 (E.I. 38), and the third applicant was detained under the Preventive Custody (No. 8) Order, 1978 (E.I. 44). E.I. 38 is dated 5 April 1978, and took effect on the same day. E.I. 44 is dated 20 April 1978, and also took effect on the same day. E.I. 46 is dated 25 April 1978, and took effect forthwith according to paragraph 2 which provides:
"2. For the removal of doubt, and without prejudice to paragraph 1 of this Instrument, all persons held in preventive custody at the commencement of this Instrument under the preventive Custody Decree, 1972 (N.R.C.D 2) or any instrument made thereunder and who have been so held since 1974 shall forthwith be released from preventive custody under the said Decree or Instrument."
Mr. Joe Reindorf, learned counsel for the applicants, contends that since the first and second applicants were detained on 5 April 1978, they were covered by paragraph 2 of E.I. 46 and were entitled to be released with effect from 25 April 1978, a submission which, in the absence of extrinsic evidence, at first seemed to sway the learned Director of Public Prosecutions, learned counsel for the respondents. However, the learned Director of Public Prosecutions, on further reflection, parted company with Mr. Joe Reindorf.
Thus while Mr. Joe Reindorf understands the phrase "persons held in preventive custody . . . since 1974" appearing in E.I. 46 to include those detainees who have been held from any point of time as from the beginning of 1974 to the date of the promulgation of E.I. 46, i.e. 25 April 1978, Mr. Gyeke-Darko, the learned Director of Public Prosecutions, thinks [p.220] the phrase "persons held in preventive custody . . . since 1974" applies only to detainees who were detained in 1974 and were still in detention up to 25 April 1978.
A reference to the Oxford Dictionary for the meaning of "since" will reveal that both interpretations of the word "since" are correct. Used as a preposition, "since" means throughout or in the per